(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Union Pacific Railroad Company

1. (A) Carrier violated the currently effective agreement between the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes and the Union Pacific Railroad Company when, on May 11, 1969, they required the Telegraph Operator at Idaho Falls, Idaho to bill a carload of horses, work traditionally, historically, customarily and normally performed by the incumbent on position of Livestock Bill Clerk at that point.

 (B) Carrier shall now be required to make Claimant, Clerk Mrs. M. L. McHan, whole by compensating her in the amount of five (5) hours and twenty (20) minutes at rate of time and one-half for the position of Livestock Bill Clerk ($593.68 per month) for date of May 11, 1969, the amount she would have earned had the violation not occurred.

 2. (A) Carrier violated the currently effective agreement between the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Empl 15, 1969, they required the Telegrapher at Idaho Falls, Idaho to bill Car UP48928 containing horses and traditionally performed by the incumbent on the position of Livestock Bill Clerk at that point.

 (B) Carrier shall now be required to make Claimant, Clerk Mr. W. A. Storer, whole by compensating him in the amount he would have earned had violation not occurred; namely, five (5) hours and twenty (20) minutes at the rate of time and one-half rate of position of Livestock Bill Clerk ($593.68) per month.


OPINION OF BOARD: Claimants each held the position of Livestock Bill Clerk
 at Idaho Falls, Idaho. On claim dates, each of Claimants
 were enjoying their regularly assigned rest day and Carrier instructed and
 permitted employes not covered by the involved Agreement (Telegrapher-Clerk)
 to prepare way bills on certain carloads of horses. The Organization contends
 that Rule 41(1), the same being known as "Work On Unassigned Days" Rule is the
 only-issue involved in this dispute; that under this Rule, the Organization
 does not have the burden of proving exclusivity; and that the Carrier had the
 absolute duty to utilize these Claimants for the involved work. Carrier al
 leges that the involved work is assigned to and perf,,rmed by Telegraphers as
 well as Clerks during their regular work week; that Lhe preparation of Way
 Bills can be performed by both Telegraphers and Clerks; and that the Organiza
 tion has failed in its burden of proof to show that Claimants had exclusive
 right to the work or exclusive assignment thereof.

 This Board has no argument with the contentions of either of the parties to this dispute. This dispute involves the 'Work On Unassigned Days" Rule, and the Organization does not have the burden of proving exclusivity. However, the criteria that determines disputes of this nature is not only whether or not Claimants normally performed the involved work; in order to sustain the claim, normally perform this work during their regular work week. In the instant case, there is evidence that Claimants normally performed the involved work during their work week. However, there is also evidence to the effect that TelegrapherClerks also performed Had the Telegrapher-Clerks in this instance performed the involved work only on Claimants' unassigned days, this claim would have been sustained. However, the facts are otherwise in this dispute.

        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
                  Award Number 19265 Page 3

                  Docket Number CL-19164


        That the Agreement was not violated


                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: / /I I
 Executive Secretary

 Dated at Chicago, Illinois, this 9th day of June 1972.
    LABOR MEM°ER'S DISSENT TO AWARD 19265 (DOCKET CL-19164)

    (Referee Ritter)


For the reasons set forth in Labor T^ember's Dissent to Award 19219 (Docket CL-17583) and Award 19220 (Docket CL18040) (Referee Ritter), a dissent is reg involving the Work On Unassigned Days Rule.
 Attention is also directed to Award 19267 (Docket CL-185411) (Referee Hayes) adopted shortly after Award 19265 was adopted. Award 19267 correctly applies the Work On ~Unassigned 'Days Rule.
 Award 19265 is palpably in error and for thi reason,, I dissent.

                            Fletcher,

                            Member

                            6-13 -7 2