(Exhibits not reproduced.)

CARRIER'S STATEMENT OF FACTS: The claimant, Mr. E. Frembes, owned regular assignment as Assistant Stationmaster at Hartford, Connecticut, 11:55 P. M. to 7:55 A. M., with relief days Monday and Tuesday.

On Monday and Tuesday, August 23 and 24, 1965, the regular relief Assistant Stationmaster reported off because of illness and it was necessary to fill the position. As there were no spare Assistant Stationmasters available at straight time rate, a junior Assistant Stationmaster was doubled on the dates involved.

Claimant, E. Frembes, had suffered a heart attack on January 29, 1961, and following his return to work on June 4, 1961, he had advised the Stationmaster that he did not wish to be called for any spare work unless he specifically asked for it, due to the condition of his health.

Claim was initiated by the Local Chairman on September 17, 1965, in behalf of Mr. Frembes, requesting two days' pay at $25.4616, or a total of $50.92. The claim was denied on November 10, 1965, by Trainmaster Daley.

In subsequent appeal through the usual channels the claim was increased to the time and one-half rate, or a total of $76.38.

Copy of decision, dated June 30, 1966, by the undersigned is attached as Carrier's Exhibit A.

Copy of Agreement effective September 15, 1957, between this Company and the Brotherhood of Railway Clerks is on file with this Board and, by reference, is made a part hereof.

(Exhibits not reproduced.)

OPINION OF BOARD: This claim involved rights arising from the 22 January, 1962, Agreement, which reads in part as follows:

"SPARE WORK AND WORK ON HOLIDAYS

It is agreed that Spare work will be covered as follows:

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1. The spare qualified available clerk who has not performed 40 hours of straight time work in his work week and who is available at straight time rates.

2. The employe who is regularly assigned to work the position five days a week, if available, or

3. The senior qualified available clerk.

4. A spare clerk will not be used to cover any position if he is not available at straight time rates." (Emphasis ours.)

Claimant was the regular assigned incumbent of Assistant Stationmaster. His rest days of Monday and Tuesday were included in a regular relief assignment. On claim dates, the regular relief employe was absent and Daley, junior in seniority to Claimant, worked the position at the punitive rate while Claimant was never called. Clearly, Claimant, if available, should have been called.

Carrier contends that Claimant was not available because of a heart condition. Carrier further asserts but the Organization denies that Claimant had advised Carrier that he did not desire any spare work. However, Carrier showed that during that year Claimant took all twenty days of his vacation in installments of one day per week, and always coupled with his relief days so that, in effect, he was only working a four-day week for twenty weeks of the year.

The evidence is unrefuted regarding Claimant's heart condition. In addition, the situation surrounding Claimant's vacation is probative of the fact that Claimant had advised Carrier he did not desire any spare work. Therefore, we hold that the Carrier acted reasonably in relying upon Claimant's statement and not calling him. See Awards 14208 (Perelson) and 1-5809 by this referee.

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 not violated.

AWARD