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

Essentially, the Carrier argued that before Rule 7 (e) can be invoked, the Organization must prove that it is entitled to the work by reason of the Scope Rule, which, in this case, is general and gives no exclusive right to the Organization unless it shows that it bad that right by history, custom and tradition. This the Organization had failed to do. Contrariwise, the Carrier alleged that train dispatchers had customarily performed the duties reassigned to them and that the agreement expressly authorized train dispatchers to handle train orders. (Rule 26.)

Whether the Scope Rule applies here depends on whether Rule 7 (e) does. xf Rule 7 (e) applies, it takes precedence, because it is a specific rule, whereas the Scope Rule is general.

The Organization makes no claim that this work belongs exclusively to the telegraphers. It asserts merely that Rule 7 (e) requires that work of a position on an unassigned day must be assigned in the order contracted by the parties.

This is a sound argument. Not every right under the agreement needs the prior support of the Scope Rule. A senior employe does not have to prove an exclusive right to the work to prevail against a junior employe. We have held that when Carrier places certain work under the agreement it must do so according to the rules of the agreement. See Awards Nos. 13177 and 13883.

The Organization cannot assert that it is entitled to this work under the Scope Rule. Although it makes such an assertion, we reject it under the well established rule that it must prove its right thereto by history, custom and tradition. The Organization has the right, however, to say that if the

Carrier places the work under its agreement, it is obliged to assign it in accordance with Rule 7 (e). Under this theory the Organization need make no claim to exclusivity. It does not object to Carrier's right to abolish the job and transfer the remaining work to dispatchers. It does object to the transfer of work which is part of a telegrapher's job to a train dispatcher.

In support of its position, the Organization cites 3 pertinent awards, 5810 (Carter), 6689 (Leiserson) and 11604 (Coburn). In Award 5810, on this very property, we held that Carrier could not reduce a seven day position to six by allowing the work remaining to be performed on the seventh day to be done by an employe at another station. Rest day work, it held, must be given to an extra man, if available, and if not to the occupant of the regular position.

This award does not wholly answer the question because it makes Rule 7 (e) applicable as between members of the bargaining unit. The Organization argues that if it applies between members of the bargaining unit, it applies, a fortiori, between a member of the unit and one outside. This does not necessarily follow, for the agreement may apply only as to the order of assignment among those under the agreement and not to those outside.

In Award 6689, the question is considered in depth, and is impressive not only for its content, but because the referee was also one of those who drafted the work on unassigned days rule and must have known the intention motivating it. It held that Carrier

"undoubtedly has the right to assign ticket selling duties to the agent and telegraphic work in connection with the movement of trains to train dispatchers, as well as to have these duties performed by the telegraphers. But, the assigning of this work to which no one craft has an exclusive right is a matter of contract between the Carrier and two or more labor organizations. And when, as in this case, it has contracted with the telegraphers to have the duties they perform in accordance with their bulletined assignments as they performed them before the 5-day week was put into effect, the Carrier may not disregard the obligations of this contract . . . .

Award 11604 held that Carrier could not use train dispatchers to do the work of an absent relief telegrapher on the same theory.

The basis of these cases seems to be that the work remained part of the bulletined job and as long as it remained such it had to be assigned according to the unassigned work rule.

Carrier cites Award 10237 (Corey) which held that Award 6689 dealt with and applied to a situation in which there was "plenty of work necessary to be done on the rest days of the assigned telegraphers." It then proceeded to hold that where the evidence was that the change was the result of a substantial reduction in business, Award 6689 did not apply. As we read Award 6689, the amount of work remaining was not influential in the decision. Rather, it rested on the theory that the remaining work was still part of the telegraphers' job.

The Carrier also relied on Award 13197 (Zack). That award, however, did not consider the impact of the unassigned work rule.

The central question is, therefore, were the duties remaining on the rest days still a part of Position No. 9? We think they were. Carrier did not abolish Position No. 9 and distribute its duties. If it had, the Organization admits it would have no claim. Carrier merely blanked the position, i.e., did not assign any one to fill it. The duties of the position were not changed. They remained, as before, duties of the position.

By blanking the position, Carrier did not remove the duties and redistribute them. It stated that it was assigning no one to the position and then proceeded to assign the dispatcher.

So long as these duties remained duties of Position No. 9, Carrier was obliged to assign the work as required by Rule 7 (e).

Award 10237, indeed, holds a different view. Without disputing the validity of Award 6689, it holds that if Carrier is motivated by a diminution of the job, it may assign train dispatchers to do the work. In our case, although Carrier alleges that the work diminished it offered no evidence in support thereof. It was mere assertion-not proof. The Organization, on the other hand, submitted evidence that on some of the days, the dispatcher performed numerous duties spaced throughout almost the entire shift. On the facts, if not otherwise, Award 10237 is not relevant.

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

That Carrier violated the Agreement.

AWARD