(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Missouri-Kansas-Texas Railroad Company

1. The Carrier violated the Agreement between the parties at Durant, Oklahoma, June 13, 19 and 20, 1974, when it required Mr. J. R. Sullivan to suspend work and dates and required him to work another position at that location outside the hours of his regular assignment, then failed and refused to properly compensate him for his service
2. Carrier shall now be required to compensate Mr. J. R. Sullivan eight (8) hours' pay at the pro rata rate of Third Trick Telegrapher-Clerk Position No.. 004 and the difference in pay between the pro rata rate allowed and the time and one-half rate of Second Trick Telegrapher-Clerk Position No. 2680 at Durant, Oklahoma, for each date June 13, 19 and 20, 1974.

 OPINION OF BOARD: Claimant was regularly assigned to a Relief Telegrapher
 Clerk-position which included a first trick assignment
 on Sundays, a second trick assignment on Mondays and Tuesdays, and a third
 trick assignment on Wednesdays and Thursdays. On the three claim dates,
 Thursday, June 13, Wednesday June 19 and Thursday June 20, 1974, Claimant
 was required to suspend work on his regular position and was assigned to
 a second trick Telegrapher-Clerk position which was temporarily vacant on
 those dates.

 It must be noted initially that both parties to this dispute have raised new issues and submitted new material in their submissions which were not discussed or presented during the handling of this dispute on the property. In accordance with well established practice (and Circular No. 1 dated October 10, 1934) such material cannot be considered by this Board.

 The most pertinent Rule cited by Petitioner is Rule 48, Absorbing Overtime, which provides. in part:





Petitioner argues that there was no emergency implicit in the situation
 and further that Claimant "stood to be called for overtime had he been
 allowed to work his regular assignment." Petitioner cites a number of
 other Rules and a series of Awards in support of its basic position. In
 essence these Awards held that Carrier violated the Agreement, in particular
 the Absorbtion of Overtime Rule, when there was no emergency and further
 when it was established that Carrier's assignment deprived the Claimant of
 either overtime or the anticipation of overtime (c.f. Award 6732).

 Carrier points out that the emergency was brought about because the Extra Board was exhausted and there was no other alternative to have the work performed on the dates in question but to assign Claimant due to the restrictive provision of the Federal Hours of Service Law. It is argued further that Claimant suffered no loss of pay on the days in question and also it was a well established practice to use employes under circumstances

 Such as this. -.._-_ ._---. ._ _--__.-_-_.__ _.: ___

 The fundamental flaw in the Organization's position in this dispute relates to whether or not Claima or the anticipation of overtime. The record is quite clear in that Carrier was precluded by law from working Claimant on both 'positions; this was the essential reason for the exhaustion of the Extra Board as well. It must be concluded that under the interpretation of Rule 48 set forth in the Note limiting the Rule's application to suspension from work to absorb "overtime previously earned or in anticipation of overtime to be earned by him" there has been no violation in this dispute. In view of our conclusion on this essential element of the Claim it is not necessary to consider the many other issues raised; further, it is quite evident from the facts of record, that there was indeed an emergency. For the foregoing reasons, the Claim must be denied.



That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
                  Docket Number CL-21368


        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST: s
 Executive Secretary

 Dated at Chicago, Illinois, this 18th day of February 1977.
              LABOR MEMBER'S DISSENT

              TO

              AWARD 21411 (Docket CL-21368)

              (Referee Lieberman)


Award 21411 is in palpable error. This Board and the rules of the parties' agreement have long been dedicated to the proposition that an employe cannot properly be removed from his position in order to w tion. See Awards 4499, 3416, 5578, 8013, 6732, 13158, .=;
 11860, 12227.
 Moreover, the parties have a specific Memorandum of Agreement covering the performance of extra and vacation relief work. Section VII of that Agreement provides:

          "An extra board will be considered as exhausted when there are no qualified extra erm loges available to work at the straight time rate.


        "teen an extra board is exhausted and it is necessary to

        use a regular employe to work a position at the overtime

        rate, the senior, qualified and available regular errrlove

        at the location involved, shall have the rift to work

        the position on an overtime basis, except that when the

        vacancy is on the rest day of an erploye whm is the regu

        lar occupant of the position, such errploye will have

        prior rift to the vacancy. In such cases, when no

        regular assigned errploye is available or desires to work

        the vacancy, the senior, qualified, available extra

        employe will be used to work the vacancy and paid the

        time and one-half rate." (Underscoring added.) .

The Majority in Award 21411 recognizes that the extra board was exhausted. Section VII auoted above sets forth the procedure to be followed when the extra board is exhausted. It was not followed in the instant case and we can discuss "fundamental flaws" and "suffered no loss of pay," ad infinitum, but this does not change the fact that the~parties
 provided for just this contingency, which contingency the

 Board chose to ignore.

      Moreover, we have held in our Award 7403 (Larkin):


          "As to the merits of the instant claim, this Board has repeatedly held that where an employe has regularly assigned hours and is directed to work a different trick, thus losing his regular assignment because of the limitations of the Hours of Service law, he is ent for the hours lost on his regular assignment. Awards 2742; 3097; and 6340: Even though Claimant has lost nothing in the way of compensation, or in number of hours

          _ worked, he has suffered a 'loss of time on account of the hours of service law . . . in changing positions . . . by the direction of proper authority. . ~' As this language has been previously interpreted and applied by the Board, such claims have been sustained. Awards 2742; 3097."


      The award is in error and I dissent.


~~W vE~


_J~J 1 .
                            w


                          Labor er


-2-

      Dissent to Award 21411