off on short notice and no qualified relief is available, provided the Local Chairman is apprised of the facts. It is the contention of the Carrier that the requirements of the Letter Agreement referred to were fully met in this instance.

The last paragraph of the Letter Agreement deals with absentees on short notice where no qualified relief is available. In the August 9th instance, there was no notice, nor was there any qualified relief available. There was no opportunity to give advance notice to the Local Chairman that the position would not be filled, and this situation was created by the emplove's own act. The Letter Agreement makes no provision for a situation of that kind, and the Carrier was obliged to make the best of the situation and leave the position unfilled.

With respect to the absence of September 1st and 2nd, of which short notice was given, the Carrier handled the situation strictly in accordance with the provisions of the last paragraph of the Letter Agreement. There were no qualified employes available to fill the position, and the Local Chairman was duly notified to that effect. The clear inference to be taken from the wording of the rule is that under such circumstances no claim would be presented.

(Exhibit not reproduced).

OPINION OF BOARD: The claim is premised on facts which, in many respects, are in dispute. It is represented by the Brotherhood that the employe on August requested permission, which was granted, to be absent from duty on August 9. He was abseent on that day and his position was not filled. It is not disputed that there were no qualified clerks on the extra list. There is a dispute as to whether any of the lower rated employes were qualified to do the work. The Carrier contends that they had no actual notice of the specific day the employe was to be absent, and when he failed to report for duty on the 9th, the Carrier had no opportunity to notify the local chairman. The employe notified the Carrier on August 30 of his intended absence from duty on September 1 and 2; and on that occasion the Carrier notified the local chairman. In neither instance did the Carrier move a lower rated employe into the temporary vacancy. The reason assigned was that no qualified employe in a lower rated position was available to do the work. This is disputed by the Organization.

The claims are premised on Rules 13 and 38 of the Agreement; and more particularly upon the understanding of the parties expressed in Carrier's Memorandum of June 13, 1941. The pertinent part of the June 13, 1941 Agreement reads as follows:

"* * * the committee agreed that when vacancies occur in the higher rated positions (when the absentee is not paid), lower rated qualified employes will be moved up but we are not required to fill the lowest rated position if relief is not readily available.

When employes report off on short notice and no qualified relief is available, the local chairman should be apprised of the facts, so that claim will not subsequently be presented."

On the dates in question, the Carrier contends that there were no qualified persons in lower rated jobs that were available to fill the vacancy created by the Claimant's absences. The Carrier has the primary right, which it may not exercise capriciously, to determine whether an employe is qualified to perform duties of a given position, and in a dispute, the burden is on the Organization to establish that qualified relief was at and. Based solely on the submissions in this case, we do not believe that burden has been sustained, and we find as a fact that no qualified relief was available on the dates named in the claim.

There is also a dispute as to whether the Carrier had actual notice that the employe would be absent on August 9. It admits it had notice of the fact that the vacancy for a day was imminent and pending. Whether it had advance knowledge of the actual day the vacancy would occur is immaterial. The Carrier also knew the qualifications of its staff and knew whether a qualified lower rated employe would be available to fill the impending vacancy. Under such circumstances the intendment of the Agreement of June 13, 1941, was that it notify the local chairman. It is admitted that it did not.

Under date of December 8, 1947, the Carrier paid a claim when the employe (same as in this case) was absent and his position not filled. The reason assigned by the Carrier (see Carrier's Reply to Employes' Oral Brief, this docket) was that "Carrier failed to advise the local chairman of Mr. Baker's reporting off, and there being no qualified relief available, which would be the Carrier's obligation under Memorandum of Agreement-dated June 31, 1941."

The construction placed on the Agreement by the parties is persuasive; and when applied to the facts of this case, we find that the petitioner should be paid for August 9; but as notice to the local chairman was given respecting the vacancies for September 1 and 2, the claim is not valid for such dates.

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

That the Carrier violated the Agreement of June 13, 1941, when it failed to notify the local chairman of the impending vacancy on August 9, 1948, in the position held by Baker.

AWARD