"Claim on behalf of Mr. B. V. Clyburn, Signal Maintainer, Narrows, Virginia: assigned hours 7 a.m. to 4 p.m. 7 meal period 12 noon to 1 p.m.s rest days Saturdays, Sundays, and holidays, that:
(A) The carrier violated the rules of the Signalmen's Agreement, in particular Rule 108, Agreement dated April 20, 1981; and Rule 312, Agreement effective December 1, 1945, when the Carrier instructed Mr. Clyburn to suspend work on his regular assignment and to perform signal maintenance work on the territory assigned to Mr. R. M. Clark, as follows:
The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein: and, the parties were given due notice of hearing thereon .
Claimant, a Signal Maintainer, claims he is entitled to payment of 97.8 hours at the overtime rate of pay in addition to other earnings on the various dates in question as a result of having been instructed to suspend work on his assigned territory during his regular work hours to perform signal work on the adjoining territory in connection with a Rail Maintenance Program.
It is the Claimant's and Organization's position that the work required of Claimant caused Carrier to be in violation of Rule 108 of the Agreement dated April 20, 1981 and Rule 312 of the Agreement effective December 1, 1945. These rules read:
The Carrier asserts there was no violation of the rules as cited or other rules of the Agreement when it had Claimant work on the adjoining signal territory as a result of the Signal Maintainer for that territory having marked off sick and then electing to undergo elective surgery for a wrist injury that had occurred several years ago and the bulletin advertising the vacancy went no-bid for three separate postings. Moreover, the Carrier says it had the right to utilize Claimant under Rule 306(k), which reads as follows:
The contentions of the parties notwithstanding, the record shows that Claimant had filed for and been granted an additional allowance of one hour's pay at his regular straight time rate of pay on 22 separate days during the period February 1985 to May 1985, including the nine days listed in the above Statement of claim, in application of Rule 315.
The facts as revealed by the record showing that both Claimant and the Carrier had construed assignment to the adjoining territory as having resulted from an emergency, and Rule 315 holding it to be permissible for an employee to taken from his regular territory or assignment, this Hoard finds that neither party may now make a contrary contention with regard to this particular case and argue that the action was subject to other rules of the Agreement.
Accordingly, the claim will be denied without prejudice to a determination as to whether a vacancy per se on an adjoining territory constitutes an emergency, or an unforeseen combination of facts or circumstances which call for immediate action.