9. Conference discussion of this dispute was held October 15, 1963; however, the parties were unable to resolve the dispute and the claim is properly before your Board.

OPINION OF BOARD: Claimant was an extra telegrapher assigned to third shift Telegraphers' position in MS Office, San Antonio, on April S, 1963, with assigned hours of 10:30 P. M. to 6:30 A. M. The employe holding the position in H Office, Palestine, was assigned a vacation beginning April 13, 1963. Extra Telegrapher Cowan was junior to Claimant. Cowan notified the Carrier that because of illness in his family he could not work outside the San Antonio area. Claimant was thereupon removed from the position at MS Office, San Antonio, and assigned as vacation relief in H Office, Palestine. Junior Telegrapher Cowan was then assigned to the position in MS Office. Petitioner contends that Carrier, by assigning the junior man to the MS Office stands in violation of Rule 25 (d); that rule reads as follows:

"RULE 25. EXTRA EMPLOYES

(d) Senior extra employes when available and competent will be used in preference to junior extra employes but cannot claim extra work in excess of forty hours in his work week if a ,junior extra employe who has had less than forty hours' work in his work week is available. Senior extra employes will be allowed to displace junior extra employes. An extra employe who displaced another extra employe on position where a transfer is involved will be required to effect transfer of accounts during the last two hours of tour of duty on the day previous, unless other arrangements agreeable to all concerned are made. Transfer of accounts will be made by the employes involved without expense to the Railway Company. Under this Rule extra employes must accept the work to which entitled."

Carrier comes forth with the argument that Cowan, the junior man, was not qualified to work on the CTC Board at Palestine, whereas Claimant had just recently worked in H Office, Palestine and is qualified on the OTC.

Petitioner answers by stating that Cowan was qualified, since he has perperformed duties at Austin and many other interlocking plants in the vicinity of San Antonio, and understands the function of centralized control operations. They further aver that in accordance with Rule 25 (d), preference must be extended to the senior man and not the reverse as they allege Carrier has done in this case. They rely principally on Award 508, which sustained the principle that a senior extra telegrapher must be given preference over junior extra telegraphers.

In reviewing the pertinent portion of Rule 25 (d), we note that it states clearly and without equivocation, that senior extra employes will be used in preference to ,junior extra employes. There are however two qualifications that must be considered before the senior man is given the assignment. First, he must be available. Second, he must be competent. If he meets these two qualifications, he must be given preference under the Rule. In discussing this rule, we wish to state categorically that Carrier is empowered by the provisions of this rule to appoint a junior man when the senior man is unavailable or incompetent. When Carrier pursues that course of action however, it must come forward with substantial evidence to show that it was justified in assigning the junior man. In other words, in the instance just described, Petitioner first alleges a violation of the rule, then Carrier comes forth with an affirmative defense of non-availability or incompetence, which it must prove by a preponderance of evidence to support a denial award.

In the case before us, we do not have the senior man being held incompetent in the eyes of the Carrier, we have the Carrier justifying its action by stating that the junior man was not competent to perform the CTC duties at Palestine. Hence, in the execution of its managerial prerogative, it assigned the senior man. Viewing Rule 25 (d) literally, Petitioner has presented at least a prima facie case that the rule has been violated, and indeed the assignment of the senior tnan to Palestine has itself been confirmed by the Carrier. It has not denied this essential fact. It has justified its action by asserting that the ,junior man was not competent. It appears to us that once Petitioner has basically established a violation of a rule, which it has in this case, the burden of proof then shifts to the Carrier to present evidence of an affirmative defense. We have examined the record before us and we find it singularly lacking in any evidence to show that Cowan was not qualified. They merely assert that he was not qualified. It is true that Carrier in this area has broad powers of discretion in the exercise of its managerial prerogatives, but when so exercised it must be supported strongly by probative evidence. Carrier does not speak "ex Cathedra" in a situation such as the one confronting us. It must present evidence. Because it has failed to prove its affirmative defense, we hold that it has violated Rule 25 (d). We will sustain part 1 of the Claim.

Part 2 of the Claim, the method of compensating Claimant for the violation, although not referring specifically to a rule in the contract, we are unable to sustain as presented. In the handling on the property, Petitioner based its claim for compensation on Rule 13-Relief Work-Regular Employes. This rule reads as follows:

"Regularly assigned hourly rated employes used for relief work shall receive the higher rate of the two positions, and pro rata rate for time worked within the hours of his assigned position, and time and one-half for time worked outside the hours of his assigned position, with necessary actual expenses while away from home station.

If used in another office at the same station will be allowed additional transportation expenses incurred. Employes used for relief will have no claim for guarantee of regular assignment in addition to compensation allowed on relief assignment. Employes relieving monthly rated positions will receive the higher rate of the two positions, and necessary expenses while away from home station."

Clearly this rule is inapplicable in this case. Claimant is not a "regularly assigned hourly rated employe."

Under the "make whole" concept, a principle established through along series of awards, we award the Claimant the difference in pay and expenses incurred as a result of him having been assigned to Palestine. This would also include the loss of a day's pay resulting from this transfer. The intent of this award is to make Claimant "whole" for any losses incurred as a result of Carrier's action.

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 the Agreement was violated.

AWARD