The Carrier has made every reasonable effort to dispose of the dispute, but the Employes have been adamant in their efforts to enlarge on the letter agreement, and settlement could not be reached.

The Carrier respectfully submits that the claim is not supported by the agreements and should be denied.

All data herein has been presented to representatives of the Employes in correspondence or in conference.

(Exhibits not reproduced.)

OPINION OF BOARD: The facts in this case are, generally, undisputed. The Agency at Stuttgart, Arkansas, is one of six monthly rated agencies that were affected by the Letter Agreement of September 12, 1940, and came under the applicable Agreement to the following extent:

"3. Vacancies on the six monthly rated positions listed above shall be filled by appointment of employes from either of the Telegraphers' seniority rosters without regard to seniority. The hours of assignment and working conditions shall be in conformity with the hours of assignment and working conditions of supervisory agents."

On October 9, 1956, E. H. McClure, then Agent at Stuttgart resigned effective that date, thereby creating a vacancy at this station commencing on the morning of October 10, 1956. The Carrier required Chief Clerk R. R. Pullig (not an employe under the Telegraphers' Agreement) to take charge of the Station during a 26-day period, October 10, 1956, through November 4, 1956, at which time P. E. McCarty had been appointed and assumed the duties of Agent on November 5, 1956.

It is urged by the Petitioner that Carrier's requiring Chief Clerk Pullig to take charge of the Station and assuming the functions of an Agent during this period was in violation of the Scope Rule and number 3, of the September 12, 1940 Letter Agreement (heretofore cited).

The Carrier, on the other hand, contends that the station duties and responsibility of an Agent were not turned over to someone else at Stuttgart but that by the resignation of McClure the Carrier was deprived of an Agent at that point; it is further contended by the Carrier that it did not consider 25 days an unreasonable length of time to select an Agent for so important a station.

Award 5723 (Guthrie) involved a controversy between the same parties involved in this dispute. Though there is a slight and unsubstantial variation in the facts in the two matters under consideration, the issues and principles involved are identical. It was there held: "Therefore it seems clear that during the interim period the Carrier was obligated to fill the position until a permanent assignment was made from the ranks of the Telegraphers."

We are bound to conclude, under all the circumstances, that Award 5723 is controlling in the instant matter.

Furthermore, in a letter addressed to the General Chairman by the Manager-Personnel, we note the following:

. In my opinion the only reason that you could have valid basis for complaint in this instance is due to the length of time this position remained unfilled following resignation of former Agent E. H. McClure without advance notice on October 9, 1956, and I do not agree that you could have any valid basis for complaint beginning October 10, the day following the unexpected resignation of former E. H. McClure." (Emphasis ours.)

This is, at least, a tacit concession that the Agreement had been violated, especially when we couple it with what followed. The Carrier insisted that it had a right to appoint employes from either of the Telegraphers' seniority rosters to fill vacancies on this assignment and that the Petitioner had no right to insist that any certain employe be paid when presenting a claim for an alleged violation when the position was not filled. In the furtherance of its position the Carrier then proceeded to name and make allowances to furloughed Agent C. M. Webster and Clerk Telegrapher C. I. Hughes indicating it was agreeable to Carrier for the Organization to name the Claimant to receive the payment that could have protected the Clerk-Telegrapher position.

The Petitioner refutes this contention of the Carrier, characterizing the attitude of the Carrier as being an arbitrary and unilateral one; that when the Agreement was violated the right to name the Claimant rested exclusively with the Organization.

We are committed to the view that, though under the Agreement the Carrier had the right to name as Agent any employe on the seniority roster, when a vacancy occurred where there has been a violation of the Agreement, it, the Carrier, has no right to name the Claimant.

Award 10575 (LaBelle) provides, in part, as follows:

"The essence of the claim by the Organization is for violation of the Rules of the parties' Agreement. The claim for the penalty on behalf of the individual claimant named is merely an incident thereto. That the claim might have been made in behalf of another having, as between them, a better right to make it, is of no concern to the Carrier. That fact does not relieve it of the violation and the penalty arising therefrom."

It appears that during the processing of the claim the Organization had indicated that it was agreeable to having C. I. Hughes, a Telegrapher, receive part of the allowance, The Organization, on the contrary, has never contended that Agent Webster, a furloughed employe, designated by the Carrier, was a proper Claimant. The Petitioner being primarily concerned with having the Agreement upheld, any monies paid to C. I. Hughes by the Carrier should be credited against the total claim.

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

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;

That the Agreement was violated.

AWARD