The force at Walla Walla consists of four employes, including the Agent. Note 1 to Rule 1 specifically recognized the right of the Agent at such an office to perform regularly routine agency work. In Award 5699, Referee Wenke, in denying a claim which arose at McGehee, Arkansas, which had the same number of employes as Walla Walla, it was said of Note 1 to Rule 1:

"This Note specifically authorizes the Agency to have the Agent at McGehee regularly perform this routine agency work and no violation of the parties' Agreement results from his doing them."

As in Award 5699, there was no violation of the Agreement resulting from the Walla Walla Agent's actions with respect to this particular transaction.

In the handling of this claim, Employes contended that claimant was entitled to a call because one of his duties was to assist in unloading Train 346 on Monday through Friday. This contention is not well taken because claimant did not have the exclusive right to this work. The Agent regularly performed work of this kind in the ordinary course of operations. Therefore, claimant was not the "regular employe" within the terms of Rule 45-A (j), upon which Employes rely in support of their contention.

Award 5700, cited by Employes, involved a factual situation unlike the one here. There the Agent was regularly performing relief service to the exclusion of a day's work for a furloughed employe. There is no furloughed employe involved here and the work performed by the Agent, which was not of a full day, but only a few minutes, was not done in the regular course of the operations at the office. On the contrary, the Agent was, confronted on Sunday morning, February 27, 1955, with an emergency and he did the only thing he could do under the circumstances.

At all times human remains demand expedited handling. Item 1500 of Railway Express Agency's Merchandise Classification reads as follows:

"In the absence of routing instructions from the shipper, corpses, burial cases and funeral supplies, including flowers, must always be forwarded via the route making the quickest time to destination, taking into account combination routes with other Companies."

In the instant situation the Agent, with such short notice, had no choice but to deliver the shipment. Failure to effect delivery would undoubtedly have added to the grief of the survivors of the deceased, wholly apart from the bad impression of the Carrier such failure would have created. It would have been callous and inhuman to refuse to handle the shipment immediately upon arrival.

This was, in every sense of the word, an emergency. Immediate action was required. In taking that action, no Agreement rule was violated, but even if there had been a technical violation, it is submitted that there is no justification for this claim for a day's pay at punitive rates for a few minutes work. The Hoard has repeatedly held that pro rata is proper payment where an employe is deprived of work in violation of the Agreement. However, in this case there was no violation of the Agreement resulting from this emergency situation. Employes have failed to show that claimant had the exclusive right to perform the work in question under the Rules relied upon by them. The claim is entirely without merit and should be denied.

All evidence and data set forth have been considered by the parties in correspondence and in conference.

(Exhibits not reproduced.)

OPINION OF BOARD: Claimant is the Depot Agent at Walla Walla, Washington where there is maintained an agency consisting of an agent (excluded from the agreement), and two other employes besides claimant. This agency is regularly closed on Saturday and Sunday.

Claimant as a regular part of his job meets and unloads Union Pacific train No. 346 which arrives at Walla Walla at 6:45 A. M. He does this regularly five days a week Monday through Friday.

The present claim arises out of the following incident:

On Saturday, February 26 1955, the Portland Agency forwarded a corpse on Union Pacific train No. 346 consigned to the Marshall Funeral Home at Walla Walla, Washington, without giving any advance notice to the Walla Walla Agency. The corpse which was shipped in a sealed car arrived Sunday morning, February 27, 1955, at 6:45 A. M. The local undertaker communicated that morning with the agent (who knew nothing of the matter) and advised him of the arrival of the shipment. The agent then went to the depot, opened the car, and assisted in removing and delivering the corpse then and there to the unertaker. This took three or four minutes.

Claimant now seeks to be allowed 8 hours pay at one and a half times the straight time hourly rate because he was not called to perform the work in question-work which is, as he claims, part of the job content of his position and work which he performs during his regular workweek assignment.

The Brotherhood argues that since Saturday and Sunday are unassigned days for all employes at this agency, including the agent, Claimant was entitled to the work in question, under Rule 45-A (j) which guarantees to claimant the right to perform this work on his rest day. On the other hand, the Carrier relies on the exception provided in Note I to Rule 1 permitting the agent at Walla Walla to perform routine agency work.

We are of the opinion that a determination of this claim does not require us to pass upon the contending views as to whether these particular sections of the agreement as such are applicable. Instead we recognize that an emergency existed in this case.

On being contacted by the Funeral Director, the agent who concededly had no prior notice of the situation, had no alternative but to make immediate delivery. A delay no doubt would have added to the grief of those awaiting the body. When, suddenly presented with this situation early Sunday morning the agent released the body, he acted in complete good faith. To have held up delivery, would have indicated a callous and inhuman regard for the feelings of others, and had the agent not acted promptly that Sunday morning, public opprobrium and condemnation could well have been brought down upon the Agency.

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 the Agreement was not violated.

AWARD