"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. En route the 12 cars of chat were unloaded. One car of cinders was picked up at Yellow Pine and unloaded also en route. "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 Agree ́ment. "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 circumstances, it would seem that the phraseology of Article 3, Section 1, considered in the abstract, without regard to previous prac tice or awards of this Division, would authorize the Carrier to com- Further in their findings in Award 11922 this Board stated in part: ""The claimant here performed a combination of work train and through freight service and has been paid therefor.' "Both the logic and the weight of authority of the awards of this Division support the position of the Carrier." and denied the claim of the employes. The Board will take particular note that in the award referred to, 11922, the petitioner in his submission relied on the basic day rule the same as relied on in the case here in dispute. The Carrier in Award 11922 relied on the combination of service rule which is identical to the combination of service rule relied on by the Carrier in the case now before the Board. The basic day rule relied on by the petitioner in the case here to be decided does not stand alone; therefore, it does not support the claim as contended by the petitioner, and it must be read in connection with rule 9 (a), as herein quoted by the Carrier, as was done in Award 11922, and a denial award in the case here to be decided therefore must be forthcoming. In further support of the Carrier's position we invite the Board's attention to Awards 6667, 6669, 8288, 9573, 9574, 9807, 11972, 12017 and 12532, in which like decisions were rendered. In Award 7057 this Board stated in their findings in part: "This board does not have jurisdiction to make new rules. It determines questions dealing with where have the parties placed themselves by their agreements. It does not have jurisdiction to say what should be but rather what is the situation." Rule 9(a), as herein referred to by the Carrier, is contained in the current BLF&E schedule and has been applied to similar cases since its conception. A sustaining award in this case would be destroying that part of the contract, and this Board by its own admission does not have that authority. In support of the Carrier's position we invite the Board's attention to the following awards by the Western Train Service Board, wherein they held the combination of service rule applied: 594 1210 1776 1777 We also invite the Board's attention to First Division, National Railroad Adjustment Board, awards, below listed, in which awards this Board has held that the combination of service rule is applicable. In conclusion the Carrier reiterates its position that: 1. Rule 9(a), as herein quoted, is applicable in this case, and this Board has so held in the numerous awards cited. 2. There is no rule contained in the current BLF&E schedule that provides for payment as herein claimed by the petitioner in the circumstances as set forth in this docket. 3. This Board does not have jurisdiction to make new rules nor is it authorized or empowered to make a change or destroy contracts the parties have made. A sustaining award would change and destroy that part of the contract herein relied upon by the Carrier. 4. Claim cannot properly be sustained. All data in support of the Carrier's position has been presented to the employes and is made a part of the particular question here in dispute. EMPLOYES' REPLY TO CARRIER'S ANSWER: Rules 7 and 8 cover this claim and in support of this statement we are submitting for the Board's information previous claims which were allowed and were based on these two rules. (See Exhibits Nos. 1 and 2.) The carrier has referred to the allowance of former claims as having been made on basis of previous National Railroad Adjustment Board Awards. You will note in Exhibit No. 1 that no reference is made to the allowance having been made on basis of National Railroad Adjustment Board Awards. We have several additional settlements similar to Exhibit No. 1. In Exhibit No. 2 the Board's attention is also called to the fact the claim was prosecuted under rules 7 and 8 and no reference was made to previous National Railroad Adjustment Board Awards as being the basis upon which allowance was made. There are several similar claims allowed without reference to National Railroad Adjustment Board Awards being the controlling reason for allowance, and all of the claims were based on rules 7 and 8. (Exhibits not reproduced. Page reference relates to original docu ment.) 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. The claims in these two dockets (27170 and 27171) are so similar that they may be disposed of in one set of findings. The claims all relate to whether local freight crews are entitled to an extra day's pay for work train service parformed en route by stopping at bridges while section men unloaded cinders from a car in the train. The cars were picked up at intermediate points and unloaded at bridges en route. The claims fall squarely within the rule as announced in Award 12951 (Referee Yeager) and the awards cited therein. Nor is the situation changed by the settlement of some claims by the carrier. A carrier, like any other litigant, may buy peace without committing itself to pay all similar claims. AWARD: Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: J. M. MacLeod Executive Secretary Dated at Chicago, Illinois, this 15th day of November, 1954. DISSENT OF LABOR MEMBERS The valid claims presented in these dockets, patently predicated on the agreed construction of the controlling schedule agreement, have been washed out erroneously with three short sentences of findings contained in the second and concluding paragraph. The so-called "rule as announced in Award 12951" (which itself presents the spectacle of a referee reversing himself-thereby, conveniently and subserviently accommodating the carriers and the Carrier Members), if followed to its ultimate conclusion, can result only in making a gigantic mockery of that primary requirement of the amended Railway Labor Act placing an obligation upon the carriers of the nation and their employes "to exert every reasonable effort to make and maintain agreements". That rule of thumb would render a nullity all bulletin, seniority, assignment, etc., rules which constitute the very framework upon which the schedule agreements are built. Regardless of all such rules, it would leave the carrier free to work (at the carriers' whim or caprice) individual road service employes 15 hours and 59 minutes, seven days a week, at straight time rate. As so well stated by Judge Thaxter on this subject (Award 13418) "No general rule can be laid down which will solve every case". The error of the findings and award herein are further aggravated by utter disregard of the concept that the stability of the labor-management relationship requires observance of the actions and agreements of the carriers' duly authorized representatives. Certainly, it should not need be labored that all employes covered by a collective craft agreement are entitled to be paid alike. The holding here would recognize that principle only by requiring resort to economic warfare in order to compel a carrier to continue to "buy peace". The dispute contained in these dockets involved the claim of firemen, regularly assigned to local freight service, for a minimum basic day's payment for unassigned worktrain service performed, outside of their assignment. In reality, the sole point at issue here was whether or not this Division, in the guise of interpretation, should modify the parties' agreed construction of their contract as desired by the carrier. The carrier frankly conceded that, by authority as high as these same parties authorized to contract, it had agreed to a construction of the contract as a whole requiring the payment of like claims but "in view of the fact 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". (Emphasis ours.) The carrier cited with approval that part of the holding in Award 7057 reading: "This board does not have jurisdiction to make new rules. It determines questions dealing with where have the parties placed themselves by their agreements. It does not have jurisdiction to say what should be but rather what is the situation.' (Emphasis ours.) By that authority, cited so approvingly by the carrier, the validity of the within claims was established. These same parties authorized to contract had "placed themselves" in the position of having mutually placed a binding construction upon their own contract. By the authority cited by the carrier, this Division does not have the authority to unbind the parties and make their contract enforceable only at the whim or caprice of the carrier. Attention is directed to: Award 16599 (F vs. C&NW) No referee Which involved these same parties. In sustaining the claim, the Division placed controlling weight on prior settlements and held in pertinent part: |