their rest days to perform these and other duties which were a part of their positions the balance of the week. This information was obtained from overtime slips for rest day service submitted by the employes involved in the instant claim.

In summary, Carrier has shown:

(1) that the duties enumerated in Employes' Statement of Claim have never been considered the exclusive property of the Clerks as is evidenced by the joint check of 1939;

(2) that the Employes' position is contrary to the interpretation they themselves placed on their Scope Rule since 1923;

(3) that the Employes are legally estopped from asserting instant claim; and

(4) that prior to the establishment of a relief position in January, 1951, the assigned clerks were regularly called in to perform the clerical duties accruing to their positions on their rest days.

For the above reasons, Carrier asserts the instant claim is wholly without merit and urges your Honorable Board to deny it.

All of the above has been presented to the Employes.

(Exhibits not reproduced.)

OPINION OF BOARD: At the threshold we are met with a motion lodged in the docket which reads:

"A study of the ex parts submissions in each of Dockets CL7078 and CL-7079 reveal that other party or parties are involved.

In line with our statutory duty, I move, therefore, that a hearing date be set on Dockets CL-7078 and CL-7079 and that other party or other parties involved in each of these disputes be notified of such hearing."

In view of a number of awards of this Board and the decision of the United States Supreme Court in the case of WHITEHOUSE v. ILLINOIS CENTRAL RAILROAD COMPANY (No. 131 October Term 1954), notwithstanding pendency of the motion, the Board now has jurisdiction over the only necessary parties to this proceeding and over the subject matter. Awards 5627 and 5644 were ill advised. Therefore we proceed to consideration of the merits.

The disputed work at Gerlach Station is calling engine crews, selling tickets and loading and unloading mail and baggage from passenger trains. Except for short periods in 1932 and 1935 all of this work was performed by an Agent and three Telegraphers until March 16, 1942.

June 30, 1939 a joint check of Gerlach Station was made by a former Trainmaster and a former General Chairman of the Clerks to determine station duties performed. At that time the only crew calling necessary was for the outbound engine crew on one train which took 15 minutes. The joint check did not mention passenger business at all and indicated that the three telegraphers were performing an hour and a half or less of clerical work per shift.

Between March 16, 1942 and September 28, 1944 two clerical positions

Clerk-Warehoueman. Until March 20, 1949 all of the disputed work was performed by these two clerical positions.

About March 20, 1949 an additional passenger train each way was added. As a consequence, outside the regular assigned hours of the two clerks, the disputed work was performed by a telegrapher; and effective September 1, 1949 telegraphers were instructed to perform the disputed work on the clerks' rest days.

The claim was filed October 19, 1949; and it was confined to train and engine crew calling. The additional claim, involving selling tickets and loading and unloading mail, was filed August 7, 1952.

The performance of the disputed work by telegraphers outside the assigned hours and on the two rest days of the clerks continued until the establishment of a Relief Clerk position on September 4, 1950 after which clerks have performed the disputed work on rest days. The performance of the disputed work by telegraphers outside the clerks' assigned hours continued until the establishment of CTC and the abolishment of two telegrapher positions on January 11, 1951, after which clerks have performed all of the disputed work.

Rule 1 (effective December 16, 1943) provides:

" . Positions within the scope of this agreement belong to the employes covered thereby and nothing in this agreement shall be construed to permit the removal of positions from the application of these rules, except in the manner provided in Rule 64."

Rule 64 reads:

"This agreement shall be effective as of December 16, 1943, and shall continue in effect until it is changed as provided herein or under the provisions of the amended Railway Labor Act.

Should either party to this agreement desire to revise or modify these rules, 30 days' written advance notice, containing the proposed changes, shall be given and conference shall be held immediately upon te expiration of said notice unless another date is mutually agreed upon."

Regardless of how the disputed work had been performed before, the need for clerical positions was recognized by the Carrier when it established them in 1942, 1944 and 1950. And the adoption of this particular Scope Rule in 1943 protected the positions so established to the Clerks (Awards. 1314, 3506, 3563, 5785, 5790 and 6141).

The positions so established were never thereafter abolished; but when additional passenger service was established in 1949, work of the positions outside regular assigned hours and during rest days was taken from the occupants of the clerical positions and given to others. This was a violation of Rule 20 as it stood both before September 1, 1949 (Award 4497), and after (Rule 20 (f) and (h); Awards 5240, 5623, 6216).

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

That the 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

The Agreement was violated.

AWARD

Claim sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

DISSENT TO AWARD 7047, DOCKET CL-7078

/a/ J. E. Kemp