(Brotherhood of Railway, Airline and PARTIES TO DISPUTE: ( Steamship Clerks, Freight Handlers, Express and ( Station Employes ( (Penn Central Transportation Company







OPINION OF BOARD: The issue posed is whether a clerk can be assigned the
 duties of another clerk position for a day without running
 afoul of the agreement.

 Claimant, D. E. Rasile, held the position of clerk G-213, Alliance Yard, Ohio, first trick, with Friday and Saturday rest days. The holder of yard clerk position No. G-212, was absent due to illness from April 30 to May 11, 1973, and the vacancy was being protected by an extra list employe. The work week of No. G-212 was Monday through Friday with Saturday and Sunday as rest days.
                    Docket Number CL-21459


On Sunday, May 6, 1973, to cover an extra yard crew assigned that day, claimant was pulled from his regular position to perform work which would normally be done by the G-212 clerk. Claimant had to catch up his own work on Monday. The employes claim this was a ruse to avoid paying overtime, contrary to Rule 4-C-1, which reads:

        "ABSORBING OVERTIME


        Employes will not be required to suspend work during regular hours to absorb overtime."


The Union also cites Rule 4-A-1 DAY'S WORK AND OVERTIME, Subsection (f):

        "Where work is required by the Company to be performed on a day which is not a part of any assignment, it may be performed by an available extra or unassigned employe who will otherwise not have 40 hours of work that week; in all other cases by the regular employe."


and Rule 5-C-1 EXTRA BOARDS, the Union stating that these rules required the Carrier to pick somebody besides Rasile for the job and pay overtime.

 As to Rule 4-C-1 ABSORBING OVERTIME, the Carrier points to Article VI of the February 25, 1971, Clerks National Agreement, which reads:

        "ARTICLE VI - ABSORBING OVERTIME


        Insofar as concerns employees covered by the Clerks agreements on the individual railroads the following shall apply effective as of the date of this agreement:

                    Award Number 21639 Page 3

                    Docket Number CL-21459


              "Employees will not be required to suspend work during regular hours to absorb overtime.


                Note: Under the provisions of this rule,

                an employee may not be requested

                to suspend work and pay during his

                tour of duty to absorb overtime

                previously earned or in anticipa

                tion of overtime to be earned by

                him. It is not intended that an

                employee cross craft lines to assist

                another employee. It is the inten

                tion, however, that an employee may

                be used to assist another employee

                during his tour of duty in the same

                office or location where he works

                and in the same seniority district

                without penalty. An employee assist

                ing another employee on a position

                paying a higher rate will receive

                the higher rate for time worked

                while assisting such employee, except

                that existing rules which provide for

                payment of the highest rate for entire

                tour of duty will continue in effect.

                An employee assisting another employee

                on a position paying the same or lower

                rate will not have his rate reduced."


The above Note is said to supersede and settle questions raised by predating opinions cited by the Union, notably Third Division Awards 1315$ and 8563. We agree. The Note clearly precludes claimant from complaining about being suspended from his own work only to overtime "earned by him." See Third Division Award No. 16611. The
                      Award Number 21639 Page 4

                    Docket Number n-p1459


note is also of general pertinence in discussing use to assist another employe. The Union member cites Third Division Award No. 21578, which postdates the February 25, 197
The Carrier cites Rule 4-E-1 as recognizing the propriety of making temporary assignments:

              "4-E-1 PRESERVATION OF RATE


              (a) Employes assigned temporarily or permanently to higher rated positions will receive the higher rates while occupying such positions; employes assigned temporarily to lower rated positions will not have their rates reduced. Extra employes will be compensated at the rate of the position to which temporarily assigned.


              (b) A 'temporary assignment' for the purpose of this rule (4-E-1) contemplates the fulfillment of all the duties and the assumption of all the responsibilities of the position during the time occupied, whether the temporary assignee does the work in the presence of the regular employe. Assisting a higher rated employe, due to a temporary'increase in the volume of work, does not constitute a temporary assignment."


The Union discounts this as merely a rate preservation rule having little to do with assignments. We do not agree. The rule does not specify when temporary assignments may or may not be made but it certainly recognizes their existence on the property.

 The Employes urge Rule 4-A-1(f) as compelling work on unassigned days to be performed only by those specified therein. They point out that Sunday was a rest day for G-212 and, thus, was unassigned. Carrier responds that the day was assigned for claimant and it was merely exercising its
                      Award Number 21639 Page 5

                    Docket Number CL-21459


managerial prerogative in temporarily putting him on other duties. We do not read Rule 4-A-1(f) or the extra list agreement pursuant to Rule 5-C-1 as prohibiting Carrier from shifting duties as it did. The purpose of these rules is to govern priority of overtime or extra work assignment when such assignment is made.

 In sum,the agreement is simply nonspecific and inconclusive on the points raised. That being so, we must conclude that the underlying right of management to assign duties as it sees fit has not been delimited by contract. At one point the Brotherhood concedes that it would have been better had the owner of position G-212 or an extra assignee brought the complaint, but to maintain the integrity of the agreement urges this board to sustain. We fully appreciate the importance of absorbing overtime and assignment rules and will not hesitate to enforce them in a proper case. But we cannot expand the contract to create rights and duties not mutually intended by the parties.

          FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


          That the parties waived oral hearing;


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

          The agreement was not violated.


                        A W A R D


          Claim denied.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


ATTEST: 00,
 Executive Secretary

 Dated at Chicago, Illinois, this 29th day of July 1977.