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

                      (Galveston, Houston end Henderson Railroad Company


        STATEI·MT OF CLAIM: Claim of the System Committee of the Brotherhood

                        (GL-9355) that:


        "1. Carrier vio'_sted the Agreement between the parties when it removed Clerk David Abraham from his regular assignment of Demurrage Clerk on April 10, 11 and 19, 1979, and required him to work an entirely different position (Carrier File 29-BRAC).


        "2. Carrier shall now be required to compensate Clerk Abraham for eight (8) hours pay at straight tine rate of his regular assignment for April 10, 11 and 19, 1979, which were days he was not permitted to work his regular assignment and his positio


        "3. Carrier shall now be required to compensate Clerk Abraham for the difference between punitive rate of pay and pro rata rate of pay allowed for April 10, 11 and 19, 1979, account being required to work hours outside of the hours of his regular assignment."


        OPINION OF BOARD: The critical facts are uncontested. Claimant is regularly

        assigned to the position of Demurrage Cleft at the Galveston Freight Office with assigned hours of 8:00 AM to 5:00 PM, Monday through Friday. On April 10, 1979 and April 11, 1979, the Crrrier temporarily assigned Claimant to work the position of Night Chief Clerk-Dispatcher at a nearby office with hours from 4:00 FM to 12:00 midnight. The employs regularly assigned to this position had marked off. On April 19, 1979, the Carrier temporarily assigned Claimant to work the position of Chief Clerk-Dispatcher during the hours of 8:00 Aid to 5:00 FM which was vacant due to the incumbent's illness. On each of the three dates is controversy, Claimant was not permitted to work his regularly assigned position which the Carrier blanked. For each of the temporary assignments, the Ca pay. The parties do not maintain as extra board for filling temporary vacancies arising in clerical positions.


        Claimant seeks eight hours of straight time pay for each day he was not permitted to occupy his regular assignment sad the difference between the

-, premium rate and the straight time rate for the hours he was required to work
        the temporary assignments. The Organization argues tact the Carrier arbitrarily

        removed Claimant from his regular assignment 1n violation of Ru=es 3 (Seniority

        Datum), 7 (Promotions, Assignments and Displacements), 8 (Assignments and Dis

        placements), 9 (Bulletins) 12 (More Than One Vacancy), 14 (Declining Promotion),

        and 43 (Absorbing Overtinei of the applicable Agreement. To support the portion

        of this claim requesting pay at the time and ore-half rate for the time Claimant

                  _~

                      Award Number 23952 Page 2

                      Docket Number CL-23849


worked the three temporary assignments, the Organization relies on Rule 42 (Notified or Called). On the other hand, the Carrier contends Rules 49 (Preservation of Rates), 11 (Short vacancies), cad 57(e) impl3edly permitted the temporary assignments and that Rule 49 provided for the proper level of compensation due Claimant when he temporarily filled is for the absent employes on the dates in ques
This case presents two issues for this Board to decide. First, when the Carrier temporarily assigned Claimant to other positions and when it blacked Claimant's regular assignment, is the Carrier also obligated to pay Claimant eight hours of pay at the pro rata rate for his regular assignment. Second, what is the three temporary vacancies.

 As to the first issue, this Hoard has carefully perused the record, the applicable Agreement and the prior awards cited by both parties. We conclude that, at least on t agreements substantially different from the Agreement on this property. These prior awards sustained claims for eight hours' pay for each day an employs was prohibited from working his regular assignment because the agreement contained
 guarantee provisions or outright prohibitions agsias the practices. Compare: -
 Third Division Awards No. 11044 (Dolnick); No. 21578 (Caples) and No. 22186
 (Twomey) with Third Division Awards No. 16611 (Dorsey); No. 18155 (Quinn) and
 No. 18603 (Rimer). Also, is this case, the Organization has not denied the
 Carrier's contention that Claimant was the only qualified employs to work the
 temporary assig~meats. Thus, on this property, Claimant was not entitled
 to be compensated for his regular position on the dates in question. See also,
 Third Division Award No. 20025 (Sickles).

 As to the second issue in dispute, Rule 42 expressly provides that if Claimant was "...called to perforce work not continuous with., before or after the regular work period...", he was entitled to be paid at the time and one-half rate. On April 10, 1979, and on April 11, 1979, the Carrier required the Claimant to perform work totally preserves rates, provides the basic or minimum rate of pay and gust be integrated with the clear and unambiguous language of Rule 42. Third Division Awards No. 16563 (Dorsey) and No. 21338 (Blackwell.). Since Claimant worked a temporary assignment on April 19, 1979 which precisely coincided with the hosts of his regular position, only Rule 49 governs the amount of compensation due to Claimant. However., on the time and one-halt rate (with the basic straight time rate computed in accord with Rule 49).

 The Carrier defends this portion of the claim by alleging a past practice of paying the straight time rate is similar situations but the Carrier has not offered any evidence to demonstrate the existence of a past practice. Thus, Claimant is entitled to receive the difference between the time and onehalf rate and the strai
                        Award Number 23952 Page 3

                      Docket Number CL-23849


        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 Employee 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

        That the Agreement was violated.


                          A W A R D


        Claim sustained in accordance with the Opinion.


                              NATIONAL RAILROAD ADJUS'B.IENT BOARD

                              By Order of Third Division


ATTEST: Acting Executive Secretary
        National Railroad Adjustment Board


By r ~ya ....~ r.~-~
 ~i'~semarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 30th day of July 1982e

LABOR MEMBER'S DISSENT

to

AWARD 23952, DOCKET CL-23849

(Referee LaRocco)


Award 23952, while sustaining a part of the claim, is, none-the-less, in error and requires dissent. (Award 23952 incidentally, was adopted by the Carrier Members and the Referee joining to make a majority. The Labor Members felt that the Award was in error.) Award 23952 ignores the basic fact that the structure of Clerks' Agreements in the railroad industry is such that Employes are assigned to and work the jobs of their choice on the basis of bulletin and assignment rules. Such rules have been consistently interpreted to re- strict the Carrier's right to remove an employe from his own. job, and require him to work a different job. When a Carrier moves an employe off his own assignment, and requires him to perform service on some other assignment, the rules require that he be paid for his own job plus being paid for the job he is required to work. When the hours of assignment of the two jobs are different, payment for the second job is to be at time and one-half rates.
 The logic for this arrangement is quite basic. With regard to the payment for one's own-job, i.e not allowed to work because of the force assignment to a different position, the Galveston, Houston Company's Agreement guarantees an individual eight hours' pay
 per day for the job he is assigned to by bulletin. (Rule 9 and pages 31, 32, 33, 34 and 35 of the Agreement.) Such pay is to be earned between established assigned hours. The functions of .work (duties) to be performed are those assigned by bulletin. An employe is entitled to work his own job and if the Carrier refuses to let him work his own job, he must be paid therefore. With regard to the additional payment at time and one-half rates for the job to which an employe is force assigned; service was performed outside an employe's own bulletined hours, and such service is required to be paid for at time and one-half rates. (See Rule 42.) One could, and often times does perform service in addition to his own job for which he receives time and onehalf payments. In the Galveston, Housto there is only one rate that can be applied for service 'occurring outside of regular work periods, and that is the time and onehalf rate. (See Awards 21338 (Bl The claimant involved herein had ought to have been paid eight hours at straight time for his own assignment on each and every day he was denied the opportunity to work it and also been paid eight hours at either straight rates or time and one-half rates (depending upon the hours involved) for the job force assigned to work. Anything less is in violation of the Agreement

 Ad is just plain wrong...-

 V,V-CEIVJUL 2 7 1983

 00 90 Office

 J. C Fletcher, L or Mem i

 Date: