(3) Where a practice is widespread and well established the only reasonable inference is that both parties have acquiesced in the practice. See Award No. 6607.

The Carrier has also presented evidence that its practice under the agreement rules relied upon by the Employes has been widespread and well established.

In conclusion, the Carrier respectfully reasserts that the Employes' claim in the instant dispute is entirely without support under the governing agreement rules in effect between the parties hereto and should, for the reasons previously expressed herein, be denied in its entirety.

The Carrier is uninformed as to the argument the Employes will advance in their ex parte submission, and accordingly reserves the right to submit such additional facts, evidence and argument as it may conclude are necessary in reply to the organization's ex parte submission or any subsequent oral arguments or briefs submitted by the petitioning organization in this dispute.

All that is contained herein is either known or available to the Employes or their representatives.

(Exhibits not reproduced.)

OPINION OF BOARD: Claimant Johnson had been used to fill a temporary vacancy in Relief Position No. 2 on Thursday, Friday and Saturday, May 12, 13 and 14, 1955. He was then assigned to fill Position No. 50 from May 15 to June 4. He worked the position on Sunday and Monday, May 15 and 16, but having then worked five consecutive days he was held off duty for Tuesday and Wednesday, May 17 and 18.

On those two days Fewell, his junior, who had not already worked five consecutive days, was used to fill the position.

Claimant worked Position No. 50 on Thursday, May 19, and continuously thereafter until June 4, except, of course, on its rest days Friday and Saturday.

The reliefs for the rest days of Position No. 50 are within the regular duties of Relief Position No. 2, which was temporarily filled by unassigned Dispatcher Bethune until his displacement on Monday, May 23, by senior unassigned dispatcher Fewell, who had completed another temporary assignment. Dispatcher Bethune, as the temporary incumbent of Relief Position No. 2, therefore supplied the relief for Position No. 50 on its rest days, Friday and Saturday, May 20 and 21.

As Claimant Johnson did not work on those days and had worked only one day since his last two rest days, the claim is that he was the "senior qualified and available unassigned train dispatcher who will not thereby have claim to work more than five (5) consecutive days", and therefore under Article 11, Sections 10-d and 14, should have filled the temporary vacancy in Relief Position No. 2 on May 20 and 21. But the reason why he did not work on those days was that they were the rest days of Position No. 50, which he was filling under an unfinished temporary assignment until June 4.

To be entitled as a qualified unassigned train dispatcher to fill the temporary vacancy he must under Article 11, Section 10-b, meet three requirements: (1) he must be the senior; (2) he must be available; and (3) he must not thereby have claim to work more than five consecutive days. Claimant met the first and third requirements, but not the second.

For it is well settled by awards of this Division that while holding one unfinished assignment he was not available to hold another. Awards 8812, 8813, 8814, 8823, 8824 and 8912.

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 Carrier did not violate the Agreement.

AWARD