(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express earl Station Employee PARTIES TO DISPUTE:



1. Carrier violated the agreement between the parties when they arbitrarily reduced the work week of D. W. German by denying him work on September 19 and 20, 1977.

OPINION OF BOARD: On September 12, 1977, Bulletin No. 139 was issued
 advertising a vacancy on ,job 388, Outside Caller,
 Bellevue, Ohio, 11:45 P.M. to 7:45 A.M., rest days Friday and Saturday,
 due to the absence of the regular incumbent who was ill. Bids were ac
 cepted from September 72 to and including September 18, 1979. Claimant
 was the successful applicant and a bulletin dated September 21, 1977 was
 posted assigning him to that position as of that date. At the time of his
 bid, Claimant was assigned to position #365, which had Monday and Tuesdays
 as rest days. Since September 21 vas a Wednesday, Claimant argues that he
 lost tyro days' pay, in contravention of Agreement Rule 42, when he was as
 signed to position #388 midweek. He avers that he should have been assigned
 to this position on September 19, 1977. Rule 42 Workweek is quoted herein
 after for ready reference.

Claimant contends that Third Division Award 27235 is diapoaitive of this dispute, since the fact
Carrier asserts that Rule 12 is applicable herein and that it faithfully comported with its' req position #388 within the time limits specified in this rule and thus there is no liability attached to its selection decision. 7n fact, it noted that
                      Docket Number Q,-23071


he was offered overtime work on September 19 and 20, the rest days of position #365, and he refused it. Moreover, it contends that Rule 7 com plements and defines Rule 12, since (terrier is not required to incur expenses, when employes exercise seniority rights pursuant to Agreement rules. It avers that Third Division Award 21235 is is error and without judicial effect since Claimant's inability to work the five days was not caused by its' action,, but instead was precipitated by Claimant's voluntary act of bidding for posi X388.

 In our review of this case, we find Claimant's arguments more persuasive. Admittedly there is merit to Carrier's position, that it complied with Rule 12 and thus wen estopped from incurring expenses consistent with Rule 7, but we cannot disregard the presence and relational significance of Rule 42 which prohibits the reduction of days for regularly assigned employes and/or positions below fiv to Third Division Award 21235, we find nothing to suggest that Carrier could not have complied with Rule 42, notwithstanding its' contentionthat Claimant unilaterally applied for this position and was obse the rest days of position #365 on September 19 and 20. It was possible to assign him to position #388 on September 19 and this failure was not cured when overtime work was offered him on those days. Rule 42 does not address isolated assignments such as ad hoc overtime, but relates to regularly assigned employes and/or positions such as the one Claimant was selected to fill. We recognize the unfortunate conflict that is engendered by the juxtaposition 7, 12 and 42, but we believe that it was administratively possible for Carrier to assign him to position X388 on September 19 in accordance with Rule 42. In Third Division Award 21235, we stated in our conclusion that:

        "We do not feel that said result rewrites the Agreement in any manner, but rather, it gives effe the Agreement considered as a whole."


We find that our reliance on this precedent does not rewrite the labor contract but gives effect the Doctrine of Stare Decisis. We will sustain the claim.

        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 (terrier 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;
                      Award Number 23305 Page 3

                      Docket Number CL-23071


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago Illinois, this 29th day of May 1981.