7. The claim was not composed and Carrier is in receipt of a copy of the Organization's notice of intent to file same with your Board.

(Exhibits not reproduced.)

OPINION OF BOARD: The Claim as set forth in the Statement of Claim is identical to the Claim filed with the Superintendent in letter dated October 18, 1967. We excerpt from that letter (NOTE: In all quotes, infra, emphasis are supplied.):

"STATEMENT OF FACTS:

Mr. C. L. Knippers is regularly assigned to the third shift Telegrapher position at Bunkie, La., having as an assigned work week Friday thru Tuesday, rest days Wednesday and Thursday and with assigned hours 11 P. M:. to 7 A. M. Mr. Taylor is regularly assigned to the first shift Telegrapher position at Rookie, while Mr. Dowden is the regularly assigned relief Telegrapher at that point. Claim dates mentioned above are assigned rest days of each of the Claimants.

Telegrapher Knippers was relieved for ten days of vacation, September 15 through 26, 1967, excluding rest days of September 20 and 21, 1967. Instead of assigning the regular assigned Telegraphers at Runkle, La., to working their rest days in the absence of an extra Telegrapher, for reasons best known to themselves, they caused, required or permitted a Mr. M. A. Biano who holds no seniority as a Telegrapher with The Texas and Pacific Railway to fill this vacation vacancy. Telegraphers on The Texas and Pacific Railway have a work. ing agreement with said carrier to perform this work.

EMPLOYES' POSITION:

The named Claimants should have been used on their rest days to fill the vacation vacancy in lieu of a person holding no seniority as a Telegrapher with the T&P Railway Company. When they were not so used, the agreement was violated. Had they been used to perform

this work to which they are contractually entitled, they would have earned the time and one-half rate claimed. Please allow and advise."

"Facts in this case are that regular third trick man Knippers was on vacation and had moved the Swing man C. E. Dowden off his assignment and working Knippers vacancy, therefore, working rest days on first, second and third tricks, and it is my understanding the claims above cited are for time that these claimants would have worked their rest day had we not sent a telegrapher from the De. Quincy Division to protect this vacancy.

We had an extra telegrapher on the DeQuincy Division who was not working and Extra Telegrapher M. A. Biano was sent to protect the vacancy at Bookie account none available on the seniority district. Telegrapher Biano was sent to Bunkie to work 11:00 P. Dl. to 7:00 A. M. assignment and released C. E. Dowden back to his swing job as of Sept. 15, 1967 and Telegrapher Biano worked at Punkie through September 26, 1967."

"Mr. Jackson describes the claim as being in behalf of the named Claimants for the time they would have worked their rest days had the Carrier not sent a Telegrapher from the Missouri Pacific Railway to protect the vacancy at Bookie, La., and his description is correct. The Telegrapher positions at Bunkie, La., are covered by agreement between this Organization and The Texas and Pacific Railway Company. The employe sent, to Bunkie to perform work on the Telegrapher positions at that point was not an employe of The Texas and Pacific Railway and thus had no contractual right to perform this work. The employes of the T&P RR., had a contractual right to perform the work and they were deprived of said work.

It seems that Air. Jackson denies the claim solely on his contention that there is no provision in the Telegraphers' Agreement which would restrict the carrier from using a Missouri Pacific Telegrapher on the positions at Bunkie which carrier has contracted to T&P Telegraphers. Such argument obviously falls en its face."

Petitioner, on May 8, 1968, appealed to Director of Labor Relations, the chief operating officer of the Carrier designated to handle such disputes:

"Carrier used a person who was not an employe of The Texas and Pacific Railway Company and who held no seniority rights as a Telegrapher with said Carrier to relieve Telegrapher C. L. Knippers at Bunkie, La. The above named Claimants were thus deprived of the right to work on their rest days as a result of this violation. Claimant has been made under the provisions of Article 6, Section 1, which provides for eight hours time and one-half on each of the named

dates in behalf of Claimants, the exact amount they would have earned had they been permitted to work. Claimants are entitled to be made whole for lost earnings.

The person who was permitted to work the position in question is an employe of the Missouri Pacific Railway Company and holds seniority with that Carrier as a Telegrapher both prior to and following his use on The Texas and Pacific Railway Company. Since he was not an employe of The Texas and Pacific Railway Company and since he held no seniority as a Telegrapher with said Carrier, he had no right to the work in question."

"As we understand the matter, Telegrapher C. L. Ifnippers at Bunkie, Louisiana was granted his vacation period from September 15 through 26, 1967 and, since it was essential to fill the temporary vacancy occasioned thereby, the Carrier attempted to locate an available telegrapher holding seniority on the Red River and Dallas-Ft. Worth Terminal Divisions to fill the temporary vacancy; however, no telegrapher was available as all were working. Telegrapher M. A. Biano, who holds seniority on the Carrier's DeQuincy Division but was not working, advised that she was willing ao perform such extra work at Bunkie, Louisiana.

As you know, in :such circumstances- the Carrier has the right to hire a new employe to fill a necessary vacancy or to employ the services of a furloughed telegrapher from another seniority district, who would otherwise roe unemployed. We think the action taken here was more desirable than a new hiring. It has generally been the policy of this Carrier to first offer employment to its own employes who are out of work before hiring new employes. We think this is fair and reasonable and is in step with public policy as well as the policy of the Railroad Retirement Board. There is no provision in the Teleggraphers' Agreement which prohibits the Carrier from employing the services of a furloughed employe in lieu of hiring a new employe.

In view of the foregoing, claim is without merit or rule support and is respectfully dec,hned.

It is also our further position that the monetary claims are without basis because all claimants were working during the period involved in these claims. None of them suffered any loss in earnings by reason of Carrier's a.tion in this case. Since there is no penalty applicable in the instant situation provided for in the Agreement, there can be no basis fcr monetary claim."

under that Agreement nor employe relationship with the Carrier involved herein. See our Award No. 14591 in which we held:

"* * * we find immaterial the fact that the employes belonged to the same national labor organization - the collective bargaining contracts in the railroad industry are entered into on a system basis - not industry-wide. They vary in content and at times, although identically worded, are often interpreted and applied differently on the respective properties. Each agreement is confined to the collective bargaining unit recognized therein."

"The precise issue is whether Carrier was contractually barred from transferring work exclusively within the Scope of the Agreement to persons not within the collective bargaining unit of that particular contract. Who the persons may be or their relationship to Carrier is not material.

The heart of the collective bargaining agreement is the work and the right to perform that work vested in the employes in the collective bargaining unit as against the world. The bargain once made may not thereafter be lawfully unilaterally changed by either party."

Director of Labor Relations in his statements "We think the action taken here was more desirable than a new hiring." and "It has generally been the policy of this Carrier to first offer employment to its own employes who are out of work before hiring new employes." is clear and convincing evidence of obfuscation and an admission that Biano was not hired by Carrier involved herein. From this we find and hold that Carrier involved herein violated the confronting Agreement when it assigned Biano, who was possessed of no status under it, to perform work contractually reserved to employes covered by that Agreement.

Carrier's statement that "all claimants were working during the period involved in these claims" is patently in conflict with the uncontroverted evidence of record that each Claimant was on his rest day on the dates specified in paragraph 2 of the Claim. No question having been raised as to availability it must be conclusively presumed that each Claimant was available on the specified dates - therefore, a proper Claimant.

For the foregoing reasons we will sustain the Claim.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waives! 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