Penalties should not be awarded by implication. (See Awards Nos. 5821, 6385, 6758 and 8259, all First Division). Petitioner likewise ignores the Awards of the Adjustment Board which have held that the penalty for "work lost" is the pro rata rate of the position. (See Awards Nos, 2346, 2695, 2823, 3049, 3193, 3488 of the Third Division and Awards Nos. 1268 and 1269 of the Second Division). Carrier does not intend to infer that any award other than an absolute denial is justified in this case but merely offers the above as evidence of the utter inconsistency of Petitioner's position.

SUMMARY

Carrier has attempted in its Position above to clearly indicate that there is no merit in the claim of Petitioner. Carrier believes it has conclusively proven its case by making the following points-

There is a jurisdictional dispute involved in this case over which the Board should decline jurisdiction. The work of "billing of freight", is not the exclusive property right of Petitioner's represented employes at White River Junction, Vermont, some of this "billing of freight" has always been done by the Agent. There is no rule in Petitioner's Agreement which in any way supports the claim. The claim, in itself, is frivolous and undeterminable, as the amount of time actually spent by the Agent on work alleged to belong to Claimant is unknown. There is no basis for the time and one-half aspect of the claim for sustained decision in bona fide "work lost" cases have been only on pro rata basis for actual admitted or proven amounts of time.

The claim should be denied.

OPINION OF BOARD: The facts are not in dispute in this claim. The claimant is employed as a Freight Clerk at White River Junction, Vermont, with assigned bulletin hours from 6:00 A.M. to 3:00 P.M., lunch period from 11:00 A.M. to 12:00 Noon, rate of pay, $9.24 per day, and seniority date of October 1, 1941. E, P. Martel, an employe outside the Scope of the Clerks' Agreement, is employed as Freight Agent at the same station, with assigned bulletined hours of 7:00 A.M. to 4:00 P.M., rate of pay, $1.35 per hour$10.80 per day.

From the joint statement of facts it is conceded that the billing of freight is a part of the assigned duties and responsibilities of the Claimant.

The Employes claim that during the payroll period ending March 4, 1948 and March 11, 1948, there was need for freight billing work to he performed on an overtime basis after the Claimant left his tour of duty at 3:00 P.M. No attempt was made by the Agent, Martel, to assign such work to the Claimant or to ask the Claimant to perform such work on an overtime basis. Claimant was available and willing to perform said work. Agent Martel took over said work and performed part of said work on his regular tour of duty and part as overtime. The Employes claim that the Carrier violated Rule I, Scope, Rule 22 (b) and Rule 3, Seniority. Rule 22 (b) reads:

"In working overtime before or after assigned hours, employes regularly assigned to the positions on which overtime is required will be utilized. Where overtime required involves work of several positions, and less than regular number of employes are utilized, senior qualified employes, where portion of their regular duties are included in the overtime required, will be assigned."

The Agent was not within the Clerks' Agreement. The performance of the work by the Agent was a removal of the work from the Scope of the Clerks' Agreement, Rule 1. The work belonged to the Claimant under Rule 22(b. It is therefore a violation of the Agreement to permit the Agent to perform the work in question. Awards 60, 67, 420, 1630, 2044 and 2163. The claim will be sustained at the pro rata rate of Claimant's position. Awar< 1196.

That the Carrier violated the Agreement.

AWARD