(Exhibits not reproduced).

OPINION OF BOARD: It is claimed by the Organization that Carrier has violated the Agreement, more specifically Articles 1, Scope Rule, Article 14-Extra Work and also Article 16-Regularly Assigned Employes Performing Relief Work. Claim is made in two sections (a) and (b). Section (a) contends a violation of the Agreement by Carrier, by employment of Charlena Parker, as Agent-nontelegraph, at Randolph, Texas, such person not holding seniority ,rights or any rights to hold a position and perform work of Agent non-telegrapher, as covered by the Telegraphers' Agreement, for periods alleged between August 31, 1944 and October 15, 1951. Section (b) of the claim requests a sustaining Award, for such violation by Carrier, and demands that Carrier be required to compensate an employe a day's pay for each day Charlena Parker was used to fill the position of Agent non-telegrapher at Randolph, Texas.

Carrier contends the employe was properly in its service as an employe, that it has in no way violated the Agreement, and the claim should be denied.

It cannot be denied that Charlena Parker was in the employ of Carrier through a period of years, as evidenced by the record. A portion of the time she was performing the duties of Caretaker, and was compensated at the prescribed rate for such position, the balance of the time she was employed, she performed the duties of Agent non-telegrapher and was paid at the rate prescribed by the Telegraphers' Agreement. The employe was fully qualified to perform the duties, and we can find no rule anywhere in the Agreement, which denies the Carrier the right to employ those who can qualify for the position, in the Carrier's judgment. That is a prerogative of Management, and who must take the responsibility for their judgment in the hiring of employes. The position performed by this employe is fully protected by the Scope Rule 1-1, and Article 28, Paragraph 7 of the Agreement.

We cannot agree with the Organization that Carrier has failed or refused to permit a senior extra telegrapher to exercise his seniority and take the position at Randolph.

After a complete review of the record and exhibits presented by the Organization, we must hold that the burden of proof is on the one who asserts the claim. Mere words that a violation has occurred are not sufficient without positive evidence to substantiate the allegations as made. See Awards 5345, 5962. Sections (a) and (b) of claims should be denied, since the Organization has failed in its proof there were other available qualified employes entitled to the position.

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 jurisdiction over the dispute involved herein; and

That Carrier has not violated the Agreement between the parties.

AWARD