(Exhibits not reproduced.)

OPINION OF BOARD: At Emory Gap, Tennessee, two regular positions worked as follows: One position classified as agent-operator, assigned hours 7:00 A. M. to 4:00 P. M. Monday through Saturday, with Sunday the assigned rest day. The second position, classified operator-clerk, assigned hours 11:00 A. M. to 7:00 P. M. Monday through Friday, with assigned rest days Saturday and Sunday. From 7:00 A. M. until 11:00 A. M. the agent-operator performs service as an operator as required. The Organization claims that after 11:00 A. M. all operator duties were performed by the operator-clerk. The Claimant, occupying the position classified as operator-clerk, 11:00 A. M. to 7:00 P. M., makes claims as follows: Far Saturday, March 31st, when the agentoperator was held overtime after 4:00 P. M. and performed service at 5:10 and 6:01 P. M.; for Saturday, April 14th, when the agent-operator performed service during his regular working hours but after 11:00 A. M., as an operator; for Saturday, April 21st, when the agent-operator was held over after 4:00 P. M., working overtime to perform service as an operator at 5:37 P. M.; for Saturday, May 5th, when the agent-operator was held over after 4:00 P. M. to perform service as an operator at 4:40 P. M.; and for Sunday, May 13th, when the agent-operator performed service at 1:10 P. M.

The claims were handled on the property as claims for 8 hours pay at time and one-half rate for operator-clerk J. A. Tarpley. While the claims arose in March, April and May of 1956, as late as December 20, 1956, these claims were handled as 8 hour claims, then on April 11, 1957, the General Chairman wrote on that date to Caskey Knott, Supervisor of Wages, stating

"Upon further examination of this file, I find that it may have been possible for this work to have been performed within the time limit of a call; therefore, we are amending this claim to a call on each of these dates instead of 8 hours, as follows:"

Subsequently, on April 30th, an ex parte submission to the Board outlined the claims as one for a call. The Carrier alleges this was not the same claim as was progressed on the property. However, on May 1, 1957, Caskey Knott, Supervisor of Wages, wrote:

"The basis for our declination of the claim was that it is not supported by rule or otherwise, in view of which we would not care to change our conclusion by reason of a reduction in the amount of the claim."

Thus, no objection was made to the change of claim on the property, nor was this issue raised in the Corner's ex parts submission, and on page 29 of the record in Carrier's ex parts submission, the following language is found:

"General Chairman Wiggerman's letter of April 11, 1957 (Carrier's Exhibit No. 8) amended the claim to a minimum call for each of the dates involved, and his request for settlement on that basis was declined by the Supervisor of Wages in his letter of May 1, 1957 (Carrier's Exhibit No. 9)."

Thus the issue was not timely raised, and cannot be raised upon final argument.

The Employes allege a failure of the Carrier to comply with the provisions of Rule 8, Section 1, Paragraph (n) which reads as follows:

"Where work is required by the Carrier to be performed on a day which is not a part of any assignment, it may be performed by an available extra or unassigned employe who will otherwise not have 40 hours of work in that week; in all other cases, by the regular employe."

Here it is employes' position that while the agent-operator and the operator-clerk both were operators, that because the operator-clerk after 11:00 A. M. performed the bulk of the operating services, he alone could perform the work of operator after 11:00 A. M. The position is not tenable. They were both qualified to do the work. The agent-operator, being a member of the same craft, could perform the operators work at any time he was on duty. Thus, the agent-operator being on duty on April 14, at 3:20 P. M. during his regular tour of duty, was fully qualified to perform the work of operator at that time, and the claim for April 14 cannot be allowed. The claims for March 31, April 21 and May 5 are claims during which time the agent-operator was performing after 4:00 P. M. upon an over-time status, being held over after the assigned hours of his position on Saturday. Thus the work on these days, March 31, April 21 and May 5, if they had occurred on a weekday, Monday through Friday, would be the work of the position of the Claimant, he being the regular occupant of that position. Awards 4775 and 5760 in similar instances have ruled that this work is the work of the Claimant, and the claims for these days must be sustained. The claim for May 13th at 1:10 P. M., concerned a period at which time both the agent-operator and the operator-clerk on week-days, were on duty. May 13th, being a Sunday, was a free day for both positions. Thus, being between the hours of 11:00 A. M. and 4:00 P. M. and on a free day of both positions, it was the work of either position, and the claim cannot be sustained.

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 Claimant was entitled to perform the work on a call basis when such work was performed during the regular assigned hours of his position, and not during the regular hours of the agent-operator position, such being the case, on March 31st, April 21 and May 5th. In accordance with the above opinion, the claims should be sustained, on those dates.

AWARD