of the National Vacation Agreement. It is for these reasons that the Carrier has declined the contention and claim of the Organization and feels that your Board should likewise deny as untenable the position taken by the Organization and accordingly sustain unqualifiedly the position of the Carrier.

The matters contained herein have been the subject of correspondence and/or conference between the parties.

(Exhibits not reproduced).

OPINION OP BOARD: The effective Agreement between the parties bears date of July 1, 1950.

The following led to the action of the Carrier which the Organization asserts was in violation of the Agreement.

Eli Levy, Ticket Clerk, went on vacation July 8 through July 19, 1951. R. W. Robinson, Relief Ticket Clerk, moved up into Levy's position as Ticket Clerk leaving his regular assignment temporarily vacant. J. E. Whalen vacated his regularly assigned relief position and occupied Robinson's position as Relief Ticket Clerk. Mrs. Pearl Sullivan was then directed by the Carrier to fill the Whalen vacancy (in part) by relieving Information Clerks on their rest days.

It is asserted that Mrs. Sullivan was not qualified under the Agreement to perform rest day relief service as assigned to her by the Respondent since she held no seniority.

It is contended that seniority can be obtained only through a successful bid on a regularly bulletined position and that in the absence (as here) of an extra board (under Rule 25) an employe without seniority can not perform relief service on rest days, but that in such cases the regular occupant of the position is entitled to be held over and worked on his rest day.

The Respondent contends that Rule 3 (a) permits the use of workers with "employe status" if work is available; that work by such an employe in relieving others on assigned rest days is likewise proper under 37 (c-7) and 37 (d-6) which provide for the use of relief personnel, or available extra or unassigned employes.

It is further asserted that Article 6 of the Vacation Agreement contemplates that vacation relief workers will be provided and Article 12 (a) of said Agreement precludes the assumption of additional expense by the Carrier in granting vacations, the payment of time and one-half being required when employes are required to work their assignment on their rest days.

It can not properly be held that Mrs. Sullivan's occupancy of the several positions on the dates in question was primarily caused by Employe Levy taking his vacation. In truth and in fact they came into being by virtue of Employes Robinson and Whalen vacating (temporarily) their regular relief positions and moving up to take vacancies created thereby .

We do not think that the Vacation Agreement is applicable here, however, assuming that the Carrier's position in this connection is based on a sound premise, this Board has held that when provisions of the Vacation Agreement run counter to, or contravene, previously existing Schedule Rules, the Agreement must of necessity prevail (Awards 2340, 2384, 4690).

The parties are in agreement that, while Mrs. Sullivan had "employe status", she held no seniority of any nature, having never been assigned to any position by bulletin under Rule 3 (a). To assign an employe without seniority to work coming within the Scope of the Agreement has the effect of rendering seniority provisions of such Agreement meaningless and of no protective value to the regularly assigned occupant of a duly bulletined position.

The Carrier can not properly rely on Rule 3 (a) as a contractual basis for assignment of Mrs. Sullivan to perform the work in question. Rule 25 of the Agreement, the only rule under and by virtue of which seniority can be obtained, was obviously intended to limit the application of 3 (a) The only work which an employe without seniority can perform is that work which no employe with seniority rights available is willing to perform. Award 4278. In connection with the Carrier's reliance upon Rule 37 (d-7) this Board, in interpreting an identical rule, said in Award 5240:

"We find nothing in the current Agreement or the revision thereof effective September 1, 1949, that permits or authorizes work to be done by one without established seniority when there are those with established seniority available and willing to do the work. The claimants here were the occupants of the regular assignments to which the relief days related, there were admittedly no extra or furloughed employes avaliable, * * * ."

The employe that was the subject of Award 4133 (cited by the Carrier) possessed seniority attained under the Agreement applicable thereto. Mrs. Sullivan had no seniority. This distinguishing feature of such Award renders the same meaningless when considered in light of the facts existent here.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That both parties to this dispute waived oral hearing thereon;

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 jurisdiction over the dispute involved herein; and

That the Carrier violated the Agreement.

AWARD