Particular attention is directed to the instances recited in Carrier's Statement of Facts when on January 4, 1958, Extra Operator Bakle, and on December 20 and 27, 1958, Extra Operator Little were paid a call on Saturday. This was due to the fact that on all three dates, Bakle and Little had taken the assignment of Jones who was off duty account personal reasons or on vacation; they had not been relieved from the assignment prior to the rest days and therefore took the conditions of such assignment, including any calls on rest days. But that condition did not obtain on February 21, 1959, and Agent Jones, not Extra Operator Little, was the occupant of the assignment on that date.

The facts in this case show that Payne, Ohio, is a one-man station and that the occupant of that position was not available for a call on February 21, 1959, and that the Carrier, unaware of his non-availability, made repeated efforts to call him. On the basis of those facts, claim is made for an extra operator who, on the date in question, had no connection with and did not occupy that assignment. The claim, in essence, contemplates that the Carrier be arbitrarily penalized to the extent of one day's pay on account of the assigned agent being unavailable for a call.

Without waiving any of its argument above set forth, the Carrier further maintains that the claimant was not available to perform the work in question for the simple reason that he was located at Green Springs, Ohio, some 90 miles away, even if he could have been reached.

The penalty claimed is without merit under the rules, or on any basis of equity or cmomon sense, and should be denied.

OPINION OF BOARD: This claim arose when Carrier used persons not subject to the Agreement to perform work in the movement of two grain cars, one from Payne, Ohio, and one from Worstville, Ohio. Payne, Ohio, is a oneman station under the regularly assigned agent, R. H. Jones, whose workdays are Monday through Friday with rest days on Saturday and Sunday. Worstville, Ohio, a pre-pay station, is also under the jurisdiction of the agent at Payne. On Saturday, February 21, 1959, the manager of H. M. Brady and Son, a company which operates grain elevators at both Payne and Worstville, had two cars to be billed out. After failing to contact the agent, Mr. Jones, to arrange for the movement of these cars, Carrier assigned the work to the manager of Brady elevator.

The Brotherhood contends that T. R. Little, an extra, idle telegrapher, should have been called to arrange for the movement of these cars. It relies upon Rule 15 (n) and the 40 Hour Week Agreement to sustain its position.

In its denial, Carrier argues that the work performed is not the exclusive work of the telegrapher agent. It asserts that the application of seals and the preparation of memo bills is work that other than telegraphers performed. Furthermore, Carrier states that the waybills which Claimant maintains he should have been called to fill out were actually prepared by Agent Jones when lie returned to his duties on the following Monday; and, therefore, Mr. Little has no claim to this work. Carrier also denies that there were switching instructions issued as set forth in part 3 of the claim. It maintains that the manager of Brady elevator was assigned to the work only after several unsuccessful attempts to locate the regular agent. Furthermore, it states that since Claimant was 90 miles away, he could not have been available for the assignment.

We recognize that all station work in a one-man agency may not neces-

sarily belong exclusively to the agent; some of it may be essentially clerical as is the application of seals and the preparation of memo bills. Carrier and Claimant are in disagreement as to what work was performed on Saturday, February 21st and as to whether the work performed belongs exclusively to telegraphers. We find that some agency work was performed on that rest day.

The question of whether the work belongs exclusively to the telegraphers is, not the determining factor in resolving this dispute. Significant, however, is the fact that the duties in question were performed by the regularly assigned agent when he was available on his rest days; and when he was not available,. Carrier followed the practice of calling other employes covered by the Agreement to perform the work. In the instant case, in conformity with this practice, Carrier made efforts to contact Mr. Jones when agency work appeared on his rest day. Carrier concedes that, if reached, he would have been given a call in accordance with the Call Rule of the Agreement. Unable to contact him, Carrier assigned the work to a person not covered by the Agreement. It should have assigned an available, extra telegrapher with under 40 hours of work for that week as provided for by Rule 15 (n). Carrier made no effort to determine if such an extra, Mr. Little, was available. Furthermore, it cannot now raise the question of the availability of this extra employe because it did not challenge his availability on the Property.

For the reasons stated, we hold that Carrier violated the Agreement and that Claimant is entitled to compensation on a call basis.

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 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

The Agreement of the parties was violated.

AWARD