to the proper tonnage of different engines are not a part of the agreement between the parties, but are merely operating instructions..."

Our tonnage ratings are, likewise merely operating instructions, and there is no rule on this subject between the parties to this dispute.

In our conferences, the Employes also contended that the movement of the train in the Statement of Claim hereof was a lap-back. Many awards of your Honorable Board have held that this kind of movement is not a lapback. In addition to this, we have no lap-back rule. Awards issued by the First Division which refuse to consider such doubles as here involved as lap-backs, are Awards Nos. 12715, 12386, 11802, 5814, 5812. The last sentence in "Findings" of Award No. 12715 is quoted as follows:

"... We hold that doubling grades per se does not entitle claimants to extra compensation other than extra mileage, the doubling being incidental to the assignment." (Emphasis added.)

It is clear that the Employes are seeking a new rule-not for actual additional mileage, which is the practice on most railroads where hill doubles are frequently made-but for an entire, additional day. In the absence of any such rule, the Carrier respectfully requests that the claim of the Employes be denied.

FINDINGS: The First Division of the National Railroad Adjustment Board, upon the whole record and all the evidence, finds that the parties herein are carrier and employe within the meaning of the Railway Labor Act, as amended, and that this Division has jurisdiction.

Hearing was waived.

These claimants are an engineer and fireman who, as they assert, were required to double between intermediate points on their trip because their tonnage exceeded the engine's rating. The record, is conclusive that the movement which is the basis of the claim was a simple double and not a lapback. Award 11802 (Referee Spencer).

The fact that the tonnage of the train exceeded the engine's rating does not form the basis of a claim. The ratings are not a part of the contract with the brotherhoods. Award 11802.

The doubling of hills is a part of the crew's assignment or undertaking when it bids on or becomes entitled to the work and the necessity to double is no violation of any contract, basic day rule, combination of road service, or any other rule. This Division does not choose to follow Award 10689 because that award is based on false premises.

Any rights to special arbitraries or allowances were given up at the time the Director General agreed to time-and-one-half for overtime in road freight service (December 1, 1919). The "modification of doubling hill rules to the extent of allowing actual miles for doubles" was part of the bargain then made. No modification of that rule on this carrier has been called to our attention. Certainly the basic day rule does not modify the rule.

AWARD: Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of FIRST DIVISION

ATTEST: J. M. MacLeod

Executive Secretary

Dated at Chicago, Illinois, this 15th day of November, 1954.

Docket 27170

NATIONAL RAILROAD ADJUSTMENT BOARD

FIRST DIVISION

39 South La Salle Street, Chicago 3, Illinois

With Referee Charles Loring

PARTIES TO DISPUTE:

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN

CHICAGO AND NORTH WESTERN RAILWAY COMPANY

STATEMENT OF CLAIM: "Claim of Fireman C. D. Power, Dakota Division, for 100 miles at way freight rates in addition to regular trip mileage March 21 and 24, 1950 account required to perform work outside his regular assignment."

EMPLOYES' STATEMENT OF FACTS: On March 21 and 24, 1950 Fireman Power was assigned to way freight trains 37-38 operating between Hawarden, Iowa, and Yankton, So. Dakota, daily except Sunday with Sunday layover at Hawarden. On March 21, 1950 while operating on train No. 38 the crew received instructions to pick up a car of cinders at Beresford and unload them at bridge 2628 between Beresford and Alcester. One hour, that is, from 2:30 P. M. to 3:30 P. M., was consumed unloading the cinders. Claim was made for 100 miles for this service which was outside the crew's assignment. Same was disallowed on a continuous time basis. On March 24, 1950 this same crew (No. 38) received instructions to pick up a car of cinders at Beresford and unload them at bridge No. 2627. One hour; that is, from 3:50 P. M. to 4:50 P. M., was consumed unloading the cinders. Claim was again made for 100 miles at the way freight rate for work outside the crew's assignment.

POSITION OF EMPLOYES: It is our position that rules 7 and 8 cover the claims. Rule 7 covers the rates of pay for firemen in freight service; i.e., through and irregular freight, pusher, helper, mine run, roustabout, light engine movement in road service, belt line or transfer, work, wrecker, etc. Rule 8 provides:

"In all classes of service covered by Rule 7(a), one hundred (100) miles or less, eight (8) hours or less (straightaway or turn around) shall constitute a day's work; miles in excess of one hundred (100) will be paid for at the mileage rates provided, according to class of engine or other power."

Many awards have held that regular assigned service and unassigned service cannot be combined and paid for on the basis of a minimum day under the combination rule, but must be paid on basis of a minimum day for service performed on the crew's regular assignment, and an additional day for the unassigned service.

All evidence herein has been presented to the carrier in writing or in conference.

CARRIER'S STATEMENT OF FACTS: Claimant C. D. Power, Fireman, Dakota Division, was regularly assigned to way freight trains 37-38 operating between Hawarden and Yankton, and on March 21, 1950 while operating on train No. 38 from Yankton crew received instructions at Centerville, a point enroute Yankton to Hawarden, to pick up a car of cinders at Beresford, also a point enroute, to be unloaded by track employes at Bridge 2626 between Beresford and Alcester (points enroute). One hour, 2:30 P. M. to 3:30 P. M., was consumed by track employes unloading cinders at Bridge 2626.

On March 24, 1950 while operating on train No. 38 crew received instructions at Centerville, a point enroute Yankton to Hawarden, to pick up car of cinders at Beresford, a point enroute, to be unloaded by track employes at Bridge 2627 between Beresford and Alcester (points enroute). One hour, 3:50 P. M. to 4:50 P. M., being consumed by track employes in unloading cinders at that point.

At no time during the operation of unloading these cinders on March 21 and 24, 1950 was it necessary to make a cut in the train or make a reverse movement in connection therewith. For service performed, claimant was compensated under the provisions of rule 9(a) as contained in the current BLF&E schedule.

POSITION OF CARRIER: The primary question here involved is whether when a way freight crew picks up a car or cars of cinders as in the instant case and stops at a point enroute while section laborers unload said cinders the crew is performing work train service.

Rule 7(d) of agreement between the Carrier and the Brotherhood defines "work train" as follows:

"Trains assigned to construction, maintenance or betterment work, shall be considered work-trains.

"This rule shall also include snow plow and flanger service when time exceeds miles."

It is a far stretch of imagination to define a way freight handling company material and stopping enroute while section laborers unloaded such material as a work train as defined in rule 7(d). However, if it is contended that on the trip in question the claimant fireman did perform two classes of service, i.e., way freight or switch run service and work train_service, then the provisions of rule 9(a) captioned "COMBINATION ROAD SERVICE" is applicable. Work train service is classified as road service under Rule 7(a).

Rule 9(a) as contained in the current BLF&E schedule, provides:

"Road firemen, and helpers performing more than one class of road service in a day or trip will be paid for the entire service at the highest rate applicable to any class of service performed with a minimum of one hundred (100) miles for the combined service. The overtime basis for the rate paid will apply for the entire trip."

Prior to the time this Board, with the assistance of Referee John W. Yeager issued Award No. 11368, it has been the consistent position of the Carrier that rule 9(a), as above quoted, applied in cases of combination service, and claims were so disposed of. Subsequent to the date Award 11368 was issued, the Carrier, on the basis of this award, did allow a few

claims for an additional day at work train rate where two or more classes of service were combined within a terminal. On the basis of this award the Carrier continued to allow claims having similar circumstances, until this Board, with the assistance of Referee John W. Yeager, issued Award 12951, where the Board in its findings stated in part as follows:

"This claim involves the application of Article 10(a) as follows to the service performed by the claimant on April 10, 1946: '(a) Road engineers, firemen and helpers performing more than one class of road service in a day or trip will be paid for the entire service at the highest rate applicable to any class of service performed with a minimum of 100 miles for the combined service. The overtime basis for the rate paid will apply for the entire trip.'

"The train in question with about 60 revenue freight cars and 12 cars of chat (ballast) departed Meridian to Mobile. Enroute the 12 cars of chat were unloaded. One car of cinders was picked up at Yellow Pine and unloaded also enroute.

"In the light of careful study and analysis of the provisions of the Agreement and the Awards of this Division, and despite a contrary expression by this Referee in Award 11368 with regard to a movement like that portion of the non-revenue load originating in the yard at Meridian, the conclusion is reached that all of the service performed was road service within the meaning of the rules; that there was a combination of road service also within the meaning of the rules; and that the obligation of the carrier was to pay therefor in accordance with Article 10(a) of the Agreement.

"This conclusion finds support in other Awards of this Division and particularly in Award 11922. Analysis of the reasoning contained in the findings in Award 11922 clearly indicates that the conclusions of Award 11368 and the precedents on which it is based should be rejected."

and denied the claim.

It will be noted that the rule, article 10(a), relied on by the Carrier in Award 12951 is identical to rule 9(a) as contained in the current BLF&E schedule, relied on by the Carrier in this case now before the Board. In view of the fact that this Board, with the assistance of Referee Yeager, in Award 12951 reversed its previous decision made in Award 11368 with the assistance of the same referee, John W. Yeager, the Carrier likewise reversed its position and reverted to applying rule 9(a), as herein quoted, to all cases where combination service was performed in the same manner as it had been applied for a period upwards of twenty-five years prior to date of issuance of this Board's Award 11368, and the General Chairmen involved were so notified by letter.

In further support of our position, we invite the Board's attention to its Award 13339, in which this Board stated in their findings in part:

"To be required to perform service during the course of a trip is not to be 'called to perform service'. To be called for service is to be offered work in accordance with Article V and other provisions of the agreement. It is impossible to reconcile all of our prior awards on this subject but both the logic and weight of authority sustains a holding that the combination of road service pay rule is applicable to this sort of situation particularly where the crew was not taken from its territory or worked beyond the scheduled time of its assignment. Moreover, a long and consistent

practice by the parties under this rule accords with such a holding.
Hence the claim is without merit."

and denied the claim of the employes.

The Board will note that in the case here to be decided the claimant was not taken from his territory or worked beyond or outside of his assignment.

Rules 7 and 8, as referred to in the first page of the petitioner's ex parte submission are not in controversy in this case as the claimant was compensated in accordance with provisions thereof.

Rule 9(a), as herein quoted by the Carrier, is the governing rule in this case, and the position of the Carrier in applying this combination rule has been sustained by this Board in the awards referred to.

At the bottom of page 1 of the petitioner's ex parte submission he states:

"Many awards have held that regular assigned service and unassigned service cannot be combined and paid for on the basis of a minimum day under the combination rule. They must be paid on basis of a minimum day for service performed on the regular assignment and an additional day for the unassigned service."

The petitioner, however, fails to enumerate such awards. In this connection we again invite the Board's attention to Award 12951 where this Board, stated in their findings in part:

"This conclusion finds support in other Awards of this Division and particularly in Award 11922. Analysis of the reasoning contained in the findings in Award 11922 clearly indicates that the conclusions of Award 11368 and the precedents on which it is. based should be rejected."

This award, as well as others herein referred to, clearly support the Carrier's position that rule 9(a), as herein referred to, is applicable.

In Award 11922 this Board in their findings stated in part:

"In support of its position, the Committee, in its submission, relies primarily upon Article 2 (2) and Article 7 (1) of the Agreement between the parties. The former provides in part that 'in all classes of service covered by Section 1 of this Article, 100 miles or less, eight hours or less (straight-away or turnaround) shall constitute a day's work.' This rule, the basic day rule, standing alone, would support the claim. But it does not stand alone. It must be read in connection with Section 1 of Article 3 of the Agreement between the parties to which reference will be made later." Further in their findings, this Board stated in part:

"In support of its position that it properly compensated the claimants herein, the Carrier relied on Section 1 of Article 3 of the Engineers' Agreement, this provides:

'Road engineers performing more than one class of road service in a day or trip will be paid for the entire service at the highest rate applicable to any class of service performed with a minimum of one hundred (100) miles for the combined service. The overtime basis for the rate paid will apply for the entire trip.'

"There is no denial in this docket that the two types of service involved fall under the classification of road service. In the cir