Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 8811
 SECOND DIVISION Docket No. 8643
 2-MP-EW-181
 The Second Division consisted of the regular members and in
 addition Referee Thomas F. Carey when award was rendered.
 International Brotherhood of Electrical Workers
 Parties to Dispute:
 Missouri Pacific Railroad Company

 Dispute: Claim of Employes:











Findings
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriersi,,and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The record indicates that the claimant was employed by the Carrier as a Communications Maintainer with assigned work week and bulletined hours Monday through Friday, T.00 a.m. to 3:00 P.m., stand-by day - Saturday, rest day - Sunday; headquartered - Kansas City, Missouri.

 Mr. L. R. Hedeen is employed by the Carrier as an Electrician with assigned work week and bulletined hours Saturday through Wednesday, 8:00 a.m. to 4:00 p.m., rest days - Thursday and Friday.

 The foreman on duty July 30, 1978 did not notify the General Foreman at the diesel shop of the need for a Communications Maintainer to replace the missing radio hand set on MP Unit 1956, but instead instructed Electrician Hedeen to replace the missing radio hand set. The work performed by Electrician Hedeen is exclusively Communications maintainers' work under the Agreement and a Memorandum reached with this Carrier.
 Form 1 Award No. 8811
 Page 2 Docket No. 8643
 2-MP-Ew-'81

 The Organization contends violation of the Rules governing scope (Rule 1) and Seniority (Rule 24 (a)) which rules establish the exclusivity of the work in question and which reads:





and, Rule 24(x) - Seniority of the same Agreement which reads:



The Carrier raises as a defense the contentions that the replacement of modular type hand sets is in accordance with the Scope Rule of the Agreement of August 1, 1977, covering the claimant and is in accordance with the systemwide practice on the property since modular type hand sets have been used.

 The arrangement whereby train and engine employes, Mechanical Department employes, including supervisors, replaced defective land sets is system-wide. At all locations where runs originate, hand sets.,are replaced by any employe available the Carrier assert.

 The Organization relies upon a memorandum of August 12, 1960 issued in the settlement of a dispute with respect to the allocation of work between electricians and "telephone maintainers" (currently known as "communication maintainers"). Said, memorandum was signed.by the two union Chairmen and embodied as page 27 in the Parties' Agreement of August 1, 1977. It provides:
 Form 1 Award No. 8811
 Page 3 Docket No. 8643
 2 -MP-Ew-' 81
 "We have agreed between division of work with reference to
 electricians and telephone maintainers captioned folling
 stock. On the rolling stock we have agreed that the
 original installation complete, with the exception of the
 radio rack, will be electricians' work.
 Regarding maintenance, electricians will maintain all of
 the conduit and the wiring, including the primary power
 supply. Telephone maintainers' work will include main
 tenance, repair, replacement of hand sets, antennae,
 speakers and other equipment relative to radio apparatus.
 In the event telephone maintainers would require assistance
 in changing out antennae, electricians will assist them on
 these jobs."

 The Parties disagree as to meaning anal application of what was meant to be covered by the reference to "plug-in modular units". The Carrier asserts that the "plug-in handset" is a plug-in modular within the meaning of Rule 1. Conversely, the Organization contends the "plug-in modular" citation in Rule 1 references a "computer card/element" with its own purpose and does not apply to radio hand sets.

 The Parties further dispute what the "practice" in the system has been concerning the replacement of handsets since the "plug-in" variety was introduced some years ago.

 The record indicates that in the past certain radios had the hand sets wired to the control head as compared to the currently used quick release "outlet and plug-in" species.

 The language of Rule 1 of the Agreement, concerning "plug-in modular units", does not specifically delimit the species to a single particular "computer card" as advanced by the Organization. Conversely, it does specify special types that require "no specialized knowledge or skills" to replace. The condition precedent to replace such units, however, is contractually constrained to those circumstances necessary "to restore service in case of emergency".

 The Carrier argues that the failure to have an operative radio "creates an emergency if the train is delayed by reason of the crew refusing to leave the terminal". The Board in Third Division Award 10965 (horsey) defined am emergency as an unforeseen combination of circumstances which calls for immediate action.

 The 1960 memorandum was explicit in classifying the "replacement of hand sets" as work of the then "telephone maintainers". This memorandum was not rescinded or superseded by the 1977 Agreement, but rather the Parties elected to make it part of their Agreement. Both become controlling in the instant dispute.
 Form 1 Award No. ~8$11
 Page 4 Docket No. 86+3
 2-MP-EW-'81

 The record fails to indicate any effort of the Carrier to advance its "de minimus" defense on the merits at the lower levels; consequently, such argument must, therefore, be deemed barred.

 The Board notes that Rule 1 and the 1960 moenorandum must be read in "pari materia" and each construed in reference to one another. Together they stipulate that the "replacement of hand sets" is the normal work of the "communications maintainers", but in _an emer enc those hand sets, which are of a "plug-in modular" species, can be replaced by others", under the direction of a Communications Supervisor or District Officer.

 The evidence presented in the instant dispute is found to be inconclusive as to whether or not a bona fide emergency eixsted sufficient to permit the discretionary action taken by the Carrier. The record is not clear if the disputed work of replacing an inoperative hand set was a known condition requiring routine replacement or an emergency under Rule 1; requiring action necessary to restore service.

 The Carrier has failed to prove its assertion and defense by competent evidence that an "emergency" existed. Absent some proof by the Carrier of an emergency, which required prompt action and which-ioould not wait to be handled as routine communication maintainers work as per the agreement, that Agreement is found to have been violated.

 Absent the showing of an emergency, and given the Board's conclusion that the Carrier violated the Agreement, this determination by the Board should serve as a caution against such assignments in the future. However, the evidence reveals that the disputed work is sufficiently minimal so that the Board finds without prejudice that no compesatory award is deemed warranted for this particular infraction.




                            By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By ~r~v
 ¢semarie Brasch - Administrative Assistant

 Dated Cat Chicago, Illinois, this 10th day of November, 1981.