Martin F. Scheiamea, Referee


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

                STATEMENT OF CLA324: Claim of the System Committee of the Brotherhood (GL-927$) that:


(1) Carrier violated the rules of the current Agreement between the Parties,* when on Sunday., March 25, 1979, it required Mr. R. L. Jacobs to suspend work on Second Chief Yard Clerk Position No. 4335 at 5:00 p.m. and work Telegrapher-Clerk Position No. 4374 at the same locations, Pay Yard, Denison, Texas, from 5:00 p.m. to 12:00 MN, and then refused to allow him to work his regular assignment Monday, March 26, 1979.

 (2) Carrier further violated the Rules of the entreat Agreement rhea it refused to compensate Mr. Jacobs for Monday, March 26, 1979, thereby reducing his work reek below five (5) days per reek.

 (3) Carrier shall compensate Mr. R. L. Jacobs eight (8) hours' pay at the pro rata rate of his regular assigned position, Chief Clerk to Yardmaster Position No. 9087, for March 26, 1979.

 OPINION OF HOARD: The facts is this case are not is dispute. At the time
 this claim arose, Claimant, R. L. Jacobs., was regularly
 assigned to the position o! Chief Clerk to the Yardmaster at Flay Yard, Denison.,
 Texas. That position is regularly scheduled to work five days, Monday through
 Friday, 7:00 A.M. to 3:00 P.M.

 On Sunday, March 25, 1979 (his second rest day), Claimant was called to work at 3:00 P.M. to fill Position No. 4335· At 5:00 P.M. on that day, another vacancy occurred (Telegraph Clerk Position No. X374) sad Claimant was required to fill it until midnight of the 25th. * Claimant's recall to work on March 25, 1979 was cede pursuant to his seniority and in accordance with Section V11, A Addendum No. 1 of the Memorandum of Agreement between the parties.

 Since Claimant was employed on his second rest day in Position No. 4374, he was not allowed to protect his regularly assigned position No. 908'( on Monday. March 26, 1979, account of the restrictions of the Federal Hours of Service Lax. As a result, Claimant filed a claim seeking compensation of eight hours' pay at the pro rata rate for Position No. 9087 for March 26, 1979.

 Carrier's brief (p. 7) lists the position as No. 437, though documents attached indicate that position is No. 4374.
                  Award Number 24077. Page 2

                  Docket Number CL-23744


The Organization maintains that the Carrier violated Rule 48 and Rule 53 of the Rules Agreement when it refused to allow Claimant to protect his assignment on Monday. March 26, 1979. These rules provide:

        "Rule 48 - ABSORBING WmIME


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


        "Rule 53 - BASIS Cr PAY


        Nothing herein shall be construed to permit the reduction of days far employees covered by this rule belay five (5) days per week (and the monthly rated positions listed is 'NOTE' to Fade 44. Work Week, below six (6) days per week) excepting that these numbers may be reduced in a week is which holidays occur by the number o! such holidays."


The Organization maintains that Carrier's violation of these rules is clear. Since Claimant was not allowed to protect his assignment on Monday, March 26, 1979, his work week was reduced from five to four days for that week in violation of Rule 53. In addition, according to the Organization., the assigameat of overtime to Claimant on March 25, 1979 mused the suspension of his regular work on the next day is violation of Rule 48.

 Carrier, on the other hand, maintains that the Hours of Service Law prevented Claimant from protecting his assignment on Monday, March 26, 1979. It points out that the "Preamble" to Addendum No. 1 of the Memorandum of Agreement Covering the Performance of Extra ate. Vacation Relief Work states clearly that rules governing the performance o! extra work "supersede and take precedence over achy agreement rule with which they may conflict so far as extra and vacation relief work are concerned."

        Furthermore, Carrier claims that its assignment of Claimant to es-

sential duties on Sunday. March 25, 1979 was mandated by the Agreement.
 Since CUimnrt had to be assigned to Position No. 3 on that day, and since
 that assignment prevented him !rte protecting his regular assignment on Monday,
 March 26, 1979, Carrier la placed "between the devil an3r-the deep blue sea."

 Where such a conflict exists, according to Carrier, the Federal law must supersede and invalidate conflicting contractual provisions. Accordingly, Carrier asks that the claim be denied is its entirety.

 It appears to ,.his Board that the claim must be sustained. While both parties cite numerous awards to support their contentions, the simple :act remains that Carrier has created the dilemma is which it finds itself. It freely and voluntarily negotiated Section V11 of Addends No. I-of the Agreement; it also freely nego 48 and 53. Thus, it should be required to live up to their provisions.
                                                      l..

                  Award Number 240;1 Page 3

                  Docket rlixiber CL-23744


Furthermore, Carrier, is the first instance, determined that Positions No. 4335 and then 4374 had to be filled on Sundry, !.larch 25, 1979. Saving so determined, 03rrier elected to fill the positions by assigning the Claimant to them.

 Finally, the Hours of Service Lax did prevent Claimant from protecting his assignment on Monday, March 26, 1979, However, the lax did not prevent Claimant from being compensated for that day pursuant to Rules 48 and 53 of the Agreement. As Referee Larkin concluded is Award 7403 of this Board:

        "As to the merits of the instant claim, this Board. has repeatedly held that where as employe ha hours and is directed to work a different trick, thus losing his regular assignment because of the limitations of the Hours of Service Sax, he is entitled to pay for the boo`s lost on his regular assignment Axards 2742; 309'(; and 6340." (emphasis supplies)


        For the foregoing reasons, the claim is sustained.


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


        That the parties waived oral hearing; '


That the Carrier and the Employee involved is this dispute are respectively Carrier sad Employes within the meaning 'of the Railway labor Amt, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein.; sad

        That the Agreement was violated. .


                      A Y1 A R D


        Claim sustained.


                            RATIONAL RAILRpAW'ALI:UST[4=T BOARD

                            By Order of Thud Division


ATTEST: Acting Executive Secretary
        National Railroad Adjustment


By
 ~~semarie Breach - Administrative Assistant

 Dated at Chicago, Illinois, this 14th day of December 19.x2.