(Brotherhood of Railway, Airline & Steamship Clerks, ( Freight Handlers, Express and Station Fmployes PARTIES TO DISPUTE: (Duluth, Winnipeg and Pacific Railway Company

(1) Carrier violated Special Agreement of October 7, 1955, and the effective Clerical Agreement, particularly Rules 1, 19(f), 39, 47 and 48, effective August 1, 1971; and each Saturday, Sunday and Holiday thereafter when the work of Claimant R. A. Mallett, Locomotive Foreman's Clerk, was performed on Claimant's res Craft and Class.

 (2) Claimant Mallett shall now be compensated at his effective protected rate at the rate of 8 hours pay at time and one-half for August 1, 1971; and each subsequent Saturday, Sunday and Holiday that the work of the Locomotive Foreman's Clerk position is performed by Carrier employes not of this Craft and Class.

 (3) The work on Saturdays, Sundays and Holidays shall be returned to employes of this Craft and Class.

 OPINION OF BOARD: This claim was triggered by the abolition of a swing posi
 tion on July 31, 1971. Petitioner asserts that as a result
 of this action work performed by Claimant was performed by employees not of the
 proper Craft and Class on his rest days and holidays. Petitioner argues that
 this action resulted in a violation of the Special Agreement of October 7, 1955
 as well as a violation of various rules of the applicable Agreement, especially
 the Scope Rule and the Unassigned Days Rule.

 The basis of this dispute is the alleged transfer of certain work to employees not covered by the Agreement. In the face of Carrier's denials and assertions with respect to changes and reductions in the work load, it was incumbent on Petitioner t question was being performed by an improper Craft or Class of employee. The record reveals considerable argument but no evidence whatever as to specific work performed by specific employees, other than those covered by the Agreement, on the rest days or holidays.

 We deem it unnecessary to deal with the other arguments advanced since there is no evidence to support the basic position that work has been removed from performance by employees covered by the Scope Rule of the Agreement.
 i
                Docket Nuuber CL-20023


        FI1IDI1sS: 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 ir^sloycs involved in this dispute are respectively Carrier and L`nployes within the zceaniug of the Railtay 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.


                      A W A A D


        Claim denied,


                            NATIO?LAL RAILROAD ADJUST'..MT BOARD

                            By Order of 7hird Division


ATTEST:
        xccutive Secretary


Dated at Chicago, Illinois, this 28th day of September 1973,

 I
 LABOR C:Ei;BLR'S DISSE14T TO AWARD 19963 (DOCKET CL-20023)
 Referee Lieberman

 The P'ajority in Ar:ard 19963 holds that the record con
 tains "~` * no evidence whatever as to specific work perform-
 ed by specific employees, other than those covered by the
 Agreement, on the rest days or holidays."
 This Findin7 is either absurd, inane or incomretent - perhaps all three - because it is neither supported nor is it provable by the facts of record - especially iv:hen read alongside Carrier's o:<n admissions. of Petitioner's sworn statements reading:

 "By Carrier's own admission, Employes' Exhibit H, work perforred :'onday thrcu;7h Friday exclusively by Clai-ant, the handling of the 1;otor Power Service Renort, Form 8951, continued to be necessary and i,as rerformed by the Locomotive roreman on Saturday, Sunday and Holidays through 1;ovember 29, 1971; a date subsequent to the date of this claim." Then, next ignore Carrier's own admission on this point as written in their February 25, 1972 letter to the General Chairman, Employes' Exhibit "H" and, thirdly (but n (f) contained on Page 9 of Carrier's Submission. Any one of the three ignored points cited above, standing alone, to say nothing of their collective impact, would when under proper consideration be sufficient to meet the test of "competent,evidence".
 It is difficult to understand a "no evidence" problem when
 Carrier admits in both its initial submission, and also in its
 rebuttal statement, that some work (:'otive Power `ervice Report, Form 8951) was improperly assigned outside of the Agreement during the period August 1, 1971 through Novemb It is unfortunate that the Majority decided to dismiss the claim for lack of evidence; completely irregular on the basis of this record - rather than dispose of the claim on the basis of the parties own arguments.

      The Award is a null=ty and requires vigorous dissent.


                              9 ~


                        $T .

                            . Fletcher,

                            bor T7ember

                        '. e rn'b


                        0-51,-73


-2- LABOR RIE'tLER'S DISSENT TO
 AWARD 19963 (DOCKET CL-20023)