"(b) Claim that the Military Transportation Clerk now be paid eight (8) hours, at the rate of time and one-half, for each Sunday and holiday during the life of the violation."

When consideration is given to the following facts of record, viz:

1 All work in connection with military movements was originally handled by Mr. Stephens on the official position of Passenger Traffic Assistant;

2 The Passenger Traffic Assistant continued to handle a part of that work after the position of Military Transportation Clerk was established;

3. The position of Military Transportation Clerk was established as a temporary position for the purpose of assisting the Passenger Traffic Assistant in the handling of military and other special movement:; due to the work becoming too heavy for the Passenger Traffic Assistant to handle all of it together with his other duties which had also increased as a result of the war;

4. The position of Military Transportation Clerk was created with an assignment of 306 days per year and was not assigned to work on Sundays and holidays as evidenced by Carrier's Exhibit "A" reproducing the bulletin advertising the position;

5. It was known by the party making application for the position, and by the General Chairman who aeceived a copy of the bulletin, that the position was not assigned to work on Sundays and holidays, but was assigned to work 306 days per year, and established for the purpose of temporarily assisting in the handling of military and other special movements during the period of the National Emergency.

6. In performing any work in connection with military movements on Sundays and holidays the Passenger Traffic Assistant was merely performing the same work he did prior to the position of Military Transportation Clerk being temporally established, and the same work he continued to perform after that position was established, therefore, did not deprive the occupant of the position of Military Transportation Clerk from the performance of any work to which he was entitled under the conditions set forth in the bulletin advertising the position.

held by Stephens was an official one. By the first of the year 1943 the number of military trains being operated increased to such an extent that it was necessary to establish the position of Military Transportation Clerk. The position was bulletined on January 25, 1943. The bulletin stated that the position was temporary and had an assignment of 306 days a year. In the bulletin the "Description of Duties" are defined as follows: "Assist in handling military and other special movements; some typing incident thereto". This position was discontinued on March 31, 1946.

On Sundays and holidays, there were ordinarily two or three hours of work to be performed during the period between February 1, 1943 and about June 1, 1943, and this work was rotated between Stephens, Assistant General Passenger Agent Jackson and Chief Rate Clerk Rainbolt. After complaint by the General Chairman, Jackson and Rainbolt were no longer used on Sundays and holidays, as the Carrier conceded that they were not within their rights in performing this work, but Carrier contended that Stephens had a right to continue to perform this work on Sundays, because he and Mitchell, the clerk assigned under the bulletin, did the work handling military transportation matters. The record shows that Mitchell did perform this work on Sundays and holidays on nineteen different occasions between September 1943 and March 1946, and was paid on the Call basis. Stephens continued to perform work on various Sundays and holidays.

The Petitioner contends that the work performed by Stephens on Sundays and holidays violated the Agreement and relies upon Rules 1, 2, 3, 5, 7, 9, 43 and 45, and the Memorandum Agreement effective November 1, 1940.

The Carrier's position is stated as follows:

the Carrier recognizes that only that part of the work assigned to and performed by the Military Transportation Clerk came within the scope of the Clerks' Agreement for the purpose of assiting the Passenger Traffic Assistant. The Carrier does not admit, but emphatically denies, that all of the work formerly performed exclusively by the Passenger Traffic Assistant and some of which'he continued to perform was automatically placed within the scope of the Clerks' Agreement as a result of establishing the temporary position of Military Transportation Clerk. The Carrier does not deny that the Military Transportation Clerk had a right to perform the work in question on Sundays and holidays when his services were required on those days to assist in the handling of this work; but the Carrier does deny that the Military Transportation Clerk had the right to this work to the exclusion of the Passenger Traffic Assistant who originally performed all the work and continued to perform some of it after the position of Military Transportation Clerk was established."

This Board has repeatedly held that work covered by agreements cannot be removed from the scope and operation of the agreements arbitrarily. We have consistently held that work contemplated by the.agreements, Rule 1 and 2, and the Memorandum Agreement, must be assigned to employes within the agreements, and for whose benefit the agreements were made and this applies to Sunday, holiday and overtime work as well as regular week day work. See Awards Nos. 2071, 2549, 3191 and 3192. See also Rule 45(b).

Stephens had only the right to perform on Sunday and holidays the same work he performed on week days. He had no right to perform on Sundays and holidays the work that Mitchell, the Military Transportation Clerk, performed on week days. The record shows that some of the work assigned to the position of Military Transportation Clerk and performed by Mitchell during the week days, was performed by Stephens on the Sundays and holidays he worked. In fact, there is a statement in the record attributable to Jackson that on the Sundays and holidays, between 2i/z and 3 hours of the work regularly performed by the Military Transportation Clerk during the week was being performed on Sundays and holidays. So, it is fair to assume that on the Sundays and holidays Stephens worked, there were at least between two

and three hours of Military Transportation work to be performed. Of course this was a violation of the Agreement as Stephens was not under the Agreement.

Awards Nos. 931, 1593, 2334 and 3211, relied upon by the Carrier, are not in point because they deal with a situation where an employe not covered by the Clerks Agreement, whose work became too much for him to perform and it was necessary to create the position for a clerk to help this employe. Later the work again became light enough so that the employe no longer needed the aid of a clerk and the clerk's position was abolished.

Under Claim (b) the Petitioner claims that the employe should be paid under Rule 43(b). This rule reads:

"Employes who are called regularly on Sundays and specified holidays shall be allowed a minimum of eight (8) hours at time and one-half rate, except as provided in Rule 47."

This record fails to affirmatively show that Stephens regularly performed work on Sundays and holidays. It is true there was a short period of time shown in the record that this work was performed on all Sundays and holidays, that is from about February 1 to about June 1, 1943. A reading of the entire record justifies an inference that not on every Sunday and holiday there was work performed in reference to the movement of military trains. Therefore, Rule 43(a), the Call Rule, applies, and not Rule 43(b).

It follows that the claim should be sustained for each Sunday and holiday that Stephens, Jackson or Rainbolt performed work in connection with the movement of military trains, and the payment for these days should be under Rule 43 (a).

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 Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934:

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

That the Carrier violated the Agreement as shown by the Opinion.

AWARD