'Time worked on Sundays and the following holidays, namely New Year's Day, Washington's Birthday, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day (provided when any of the above holidays fall on Sunday, the day observed by the State, Nation or by proclamation, shall be considered the holiday), shall be paid for at the regular hourly rate, when the entire number of hours constituting the regular week-day assignment are worked.

'When notified or called to work on Sundays and the above specified holidays, a less number of hours than constitute a day's work within the limits of the regular week-day assignment, employes shall be paid a minimum allowance of two (2) hours at overtime rate for two (2) hours' work or less, and at the regular hourly rate after the second hour of each tour of duty. Time worked before or after the limits of the regular week-day assignment shall be paid for in accordance with overtime and call riles.'

"Paragraphs (e-1), (e-2) and (e-3) of the revised Telegraphers' Schedule effective December 1, 1938, copy of which is on file with the Board, are word for word identical with those rules quoted above.

"A great share of the activities of the Carrier must be carried on during every hour of every day in the year and for that reason there are some employes whose assignments contemplate that they shall work every hour of their assignment on every day in the year unless excused from such service when proper relief can be obtained. Despite this condition the employes requested and there was negotiated into the Schedule by mutual consent the first of the three rules quoted above, which provided that employes covered by the provisions of the Telegraphers' Agreement would be relieved of such activities as it was possible to do on Sundays and holidays.

"We desire particularly to stress that the rules above quoted are simple regulations of what shall be paid when the Carrier elects to work its employes on holidays, that is, only time worked on Sundays and the named holidays is to be paid for. There is no provision that 'if there is work to be performed by the Carrier on a Sunday or holiday which it might perform through telegraph employes it must call telegraph employes.' Again, it is only 'when notified or called' on Sundays or specified holidays that the minimum allowances are owed. There is no provision that 'the Carrier must call telegraph employes to do any work properly performable by them if and when they are on duty.'

"There is one fundamental which must govern the decision in this case. Unless the Carrier has violated an obligation it has assumed in its agreement, this Board has no jurisdiction to sustain the claim. This proposition is too elementary to require argument in support thereof.

"Summarizing, there is no agreement to sustain the employes' claim, and what the Carrier did was both in strict accord with the Carrier's contractual obligations and required thereby. Furthermore, what has been done was in strict accord with long-established practice, which circumstance fortifies the already plain conclusion that the claim must be denied.

"Under the rules of the Board the Carrier has not been permitted to see the position of the employes prior to the time the Board requires this answer to be filed. Under such circumstances, the Carrier reserves the right to make further reply at the time of the hearing."

OPINION OF BOARD: Prior to April 17, 1938, the second trick telegrapher-clerk at Moline, Kansas, was assigned to work regular week-day hours on Sundays and holidays and was given a call each Sunday or holiday to meet Train No. 14 performing the usual week-day duties in connection therewith which includes the handling of mail, baggage and express, depot to train and vice versa. Beginning with April 17, 1938 these Sunday calls were discontinued, likewise were holiday assignments on November 24, 1938, December

26, 1938, and January 2, 1939 and train service employes on train No. 14 are required to unload from their train and place in the station any mail, baggage and/or express consigned to Moline on that train Likewise, any mail, baggage and/or express lined up to leave Moline on Train No. 14 is secured from the station and placed on the train by the same train service employes.

It has been repeatedly held by this Board that work embraced by the scope rule of an agreement may not properly be removed from such agreement and assigned to employes not subject to its terms.

Beginning with April 17, 1938, on Sundays and holidays, train service employes- handled the mail, baggage and express that was handled by second trick telegrapher-clerk at oline during his week-day assignment. The fact that he did this service on week-days is conclusive proof that this work came within the current agreement and could not be performed by persons without the agreement.

In principle, there is no difference between the facts in this case from those in Award 602 of this Board. They involved the same carrier, the same organization, the same agreement, the same rules and the same issue on the merits. To the same effect are Awards 1082, 1083 and 1084.

This claim was just presented to the carrier on September 4, 1938, therefore reparations will be limited from a period beginning thirty days prior to that date. (See Article V (i) of the agreement.)

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon and upon the whole record and all the evidence, finds and holds:

That the carrier and the employe involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

AWARD