in the claim presented as required by Article V of the Agreement and Memorandum dated August 21, 1954 setting forth the manner in which claims and grievances must be filed and handled, in view of which the instant claim has no standing and it should be accordingly dismissed.

This case is without merit from any standpoint and should be dismissed or denied in its entirety.

Carrier is making this submission without having been furnished copy of Employes' petition and respectfully requests the privilege of filing a brief answering in detail the ex parts submission on any matters not already answered herein, and to answer any further or other matters advanced by the Petitioner in relation to such issue or issues.

All data submitted herein has been presented in substance to the duly authorized representatives of the Employes and is made a part of the particular question in dispute.

(Exhibits not reproduced.)

OPINION OF BOARD: There are two separate claims. In Claim No. 1 it is shown that E. E. Miller was the regular assigned agent at Silver Point, Tennessee. Mrs. W. W. Judd was the regular assigned agent at Double Springs, Tennessee. Both were agent positions covered by the Agreement. Claimants were extra employes on the Telegraphers' seniority roster.

On February 16, 17, 20, 21, 23 and 24, 1956, E. E. Miller filled a temporary vacancy position as agent at Double Springs, Tennessee, while Mrs. W. W. Judd was absent because of illness. Carrier blanked the agent's position at Silver Point for the same days and the position was not filled.

Petitioner filed a claim on behalf of H. F. Penrod, an extra, qualified, available employe for February 16, 17, 23 and 24, 1956, and on behalf of C. W. Tarpley, an extra, qualified, available employe for February 20 and 21, 1956. The claim is based on Carrier's alleged violation of Rule 17 (g) of the Agreement which reads as follows:

"When a temporary vacancy or position of less than thirty (30) days occurs, it will be awarded to the oldest available employe on the extra board, provided he is qualified."

On April 24, 1956, Carrier's General Superintendent wrote to Petitioner's General Chairman, in part, as follows:

"You quote Rule 17 (g) which provides for use of available extra employes to fill short temporary vacancies, provided they are qualified.

In my opinion, there was no violation of this rule. Neither Mr. Penrod nor Mr. Tarpley is qualified to handle an agency."

Appeal of the claims was made to Carrier's Supervisor of Wages who, on July 18, 1956, wrote to Petitioner, in part, as follows:

"It is not felt that the blanking of this position was in violation of riny of the rules of the agreement or that an extra man, even if

qualified, has any contractual rights to a position which is not worked. As information, my investigation shows that Mr. Tarpley was engaged in continuing his training period on the dates claim is made in his behalf. Attention is also called to the fact that it was held in Third Division Award No. 6288, Clarksville case, that there is no requirement upon the Carrier to have regularly assigned employe to perform duties in a temporary position, and in instant case there were no duties to perform at Silver Point."

Claim No. 2 involves the same agent positions at Silver Point and Double Springs, Tennessee, which were held by the regular assigned employes E. E. Miller and Mrs. Judd, respectively. On April 2, 1956, E. E. Miller was transferred from his regular agent's position at Silver Point to the agent's position at Double Springs, to work there during the absence of Mrs. Judd. While Mr. Miller was working at Double Springs, his regular position at Silver Point was blanked.

Petitioner filed a claim on behalf of C. W. Tarpley "for April 2, 1958 and each day thereafter so long as the position of agent at Silver Point is blanked; however, if Mr. Tarpley does not remain the senior extra employe idle during the entire period of this vacancy, then whoever is the senior extra employe idle is to be paid, and in the event there is no extra employe idle who is covered by our Agreement, the senior employe is to be compensated." E. E. Miller was used as agent at Double Springs from April 2, 1956 to May 1, 1956. During that time, Miller's regular position at Silver Point was blanked and it was not filled.

In reply to Petitioner's General Chairman's letter presenting Claim No. 2, Carrier's General Superintendent wrote, in part, on April 17, 1956, as follows:

"No extra employe qualified to handle an agency was available when we were notified during the morning of April 2 that Mrs. Judd, Agent at Double Springs, was ill and would have to be absent indefinitely. As the Silver Point agency was handling virtually no business and there was no real need for an agent there, we instructed Mr. Miller to close the station at Silver Point and protect the Double Springs agency until further notice.

The agreement contains no prohibition against blanking positions and in my opinion, there could be no violation unless someone entitled to work was denied the opportunity to perform it. Under the agreement, rights to positions are conferred only on employes qualified to discharge the duties of the position and since Mr. Tarpley was not qualified, his claim will have to be respectfully declined."

(Emphasis ours.)

Carrier contends that (1) there was "no qualified extra employe available for the relief of Mrs. Judd at Double Springs on these occasions," (2) that "business at Silver Point having all but disappeared, Agent Miller was used until she (Mrs. Judd) recovered sufficiently to resume her duties," (3) that, under the holding in our Award 6288 "there is no requirement upon the Carrier to have regularly assigned employe to perform duties in a temporary position," (4) that the Agreement contains no rule prohibiting Carrier to blank a position and (5) that Claim No. 2 does not mention the dates for which claim is made on behalf of Claimant Tarpley in accordance with the provisions of Section 1 (a) of Article V, of the August 21, 1954 Agreement.

It is necessary that we first dispose of the procedural question. Claimants are named and the dates are specifically noted in Claim No. 1. In Claim No. 2, the Claimant is named with the date commencing April 2, 1956 and to continue for "so long as the position of agent at Silver Point is blanked." It also states that if Claimant does not remain the senior available, extra employe during that period, that whoever is the senior available, extra employe should be paid. This complies with the requirements of Section 1 (a) of Article V, of the August 21, 1954 Agreement.

This Division has established the principle that a claim is valid where Claimants can be easily ascertained and readily identifiable. The claim for February 16, 17, 20, 21, 23 and 24, 1956 name the Claimants. There can be no question about compliance with Article V of the August 21, 1954 Agreement. The claim for the vacancy commencing April 2, 1956 also names the Claimant. If Mr. Tarpley should, during that period, no longer be the senior, available, extra employe entitled to fill the vacancy, the proper senior, available, extra employe can be easily ascertained and readily identifiable from Carrier's records.

The issue in dispute should be decided on the merits.

The record does not support Carrier's position that no qualified, extra employe was available. On April 24, 1956, Carrier stated that neither "Mr. Penrod nor Mr. Tarpley is qualified to handle an agency." On July 18, 1956 Carrier wrote that "Mr. Tarpley was engaged in continuing his training period on the dates claim is made in his behalf." Carrier's highest appeal officer did not question the qualification of Claimant, H. T. Penrod.

The undisputed fact is that Tarpley performed his services satisfactorily during his employment and that he worked at various stations, in various positions, including four days as Agent at Silver Point prior to April 2, 1956. Irrespective of that, however, the Carrier has failed to show that Penrod and Tarpley were not qualified.

In the absence of proof to the contrary, it is presumed that Penrod and Tarpley were qualified. There is no evidence in the record that Claimants did not have sufficient ability to perform the work of an Agent. Mere assertions that they did not have such ability is not evidence of their qualification. There is enough evidence in the record to justify the conclusion that Claimants were qualified. This presumption is not overcome by any affirmative evidence.

It is no defense that the station at Silver Point was blanked because business there "all but disappeared." Carrier has the right to abolish a position, but it has no right to blank it unless there was no qualified, available employe to fill that position. This is admitted by the Carrier in the letter of April 17, 1956 wherein Carrier's General Superintendent said that in his opinion a position may be blanked "unless someone entitled to work was denied the opportunity to perform it" Claimants were entitled to the work and they were "denied the opportunity to work it"

Award 6288 (McMahon), upon which Carrier heavily relies, is not applicable. In that case the Carrier used a clerk to perform the duties of an Operator who was sick. There was no qualified Operator available. An emergency existed. Although we denied the claim, we said:

"It is conceded by the Carrier that a technical violation of the

Agreement has been committed in assigning such position to the

Cashier, outside the work included in the Scope Rule. We agree that such action by the Carrier was of itself a technical violation, but that it was done by Carrier acting in good faith and not an attempt by Carrier to willfully or arbitrarily deprive employes coming under the Telegraphers' Agreement from performing work which rightfully belonged to them and we are of the opinion that Carrier, having discretion to act in an emergency as here existed, did so without actually depriving any of its employes compensation, since none of them suffered any resultant loss."

The factual situation and the reasons for the findings in Award 6288 bear no resemblance to the facts in this case.

In the absence of a contract provision prohibiting the blanking of a position, Carrier may do so, providing no qualified, available employe is deprived of the right to fill the position. Carrier may not, by blanking a position, accomplish the same result as by abolishing a position. Blanking of a position creates a temporary vacancy of that position which must be filled in accordance with the terms of Rule 17 (g).

For all of the reasons above stated, we conclude that there is merit to the claims.

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 Carrier violated the Agreement.

AWARD