Clerks' Supplemental Agreement as quoted in the Carrier's Statement of Facts. This rule was not in dispute on this property, however, the committee's decision lays down a set of facts that sustains the Carrier's Position as follows:

"1. Section 3 (i) did not create the right to utilize extra or unassigned employes unless a carrier has that right under existing agreements or practices. However, where that right exists, the intent of Section 3 (i) is that where work is required by the carrier to be performed on a day which is not a part of any assignment, either an available extra or unassigned employe who would otherwise not have 40 hours of work that week or the regular employe may be used; unless such work is performed by an available extra or unassigned employe who would otherwise not have 40 hours of work that week, the regular employe shall be used. Where work is required to be performed on a holiday which is not a part of any assignment the regular employe shall be used. Rules in existing agreements shall be modified to conform with the intent above expressed. Wherever the words 'the regular employe' are used in this paragraph, they shall mean the regular employe entitled to the work under the existing agreement."

The agreement between the Brotherhood of Railway Clerks and the Carrier does not contain a rule that requires overtime to be worked on a seniority basis. Overtime is worked at the point where overtime accrues. Since Rule 37 (f) became a part of the agreement it is mandatory that the employe owning the position shall be worked when no unassigned employes are available who have not had 40 hours of work in that week.

(Exhibits not reproduced).

OPINION OF BOARD: The System Committee of the Brotherhood contends that since Sept. 1, 1949, Carrier has been violating the rules of the parties' Agreement by assigning Mechanical Department employes to perform work on positions in Freight and Yard Departments.

Rules 1, 2, 4, 6 and 18 of the parties' Agreement, effective Oct. 1, 1942, as amended by the Memorandum Agreement effective Oct. 1, 1946, establish departmental seniority with separate classes in some of the departments. These rules restrict the exercise of seniority accordingly and do not permit the Carrier to assign work to employes across departmental seniority lines.

The record discloses that on Thursday, Sept. 8, 1949. Carrier assigned a Mechanical Department employe holding seniority in that Department to perform the duties of a Yard Department Clerk, it being a regular relief day of the latter position. This continued on subsequent Thursdays but for how long the record does not disclose.

The record also shows that on Saturday, Sept. 3, 1949, Carrier assigned a Mechanical Department employe holding seniority in that Department to perform the duties of a messenger in the Freight Department, it being a regular relief day of the latter position. This continued on subsequent Saturdays but for how long the record does not disclose.

Carrier seeks to justify its action by Rule 28.5(e) of the parties' Agreement, effective Sept. 1, 1949, which put into effect the 40-Hour Week Agreement.

This Rule is as follows:

"All possible regular relief assignments with five days of work and two consecutive rest days will be established to do the work necessary on rest days of assignments in six or seven-day service or combinations thereof, or to perform relief work on certain days

and such types of other work on other days as may be assigned under individual agreements. Where no guarantee rule now exists such relief assignments will not be required to have five days of work per week.

Assignments for regular relief positions may on different days include different starting times, duties and work locations for employes of the same class in the same seniority district, provided they take the starting time, duties and work locations of the employe or employes whom they are relieving."

As already stated, the agreement of these parties does not permit of work being assigned between employes across departmental seniority lines. Rule 28.5(e) clearly indicates that this limitation applies to relief assignments necessary as a result of putting into effect the five-day week.

In view of the foregoing it becomes apparent that assigning Mechanical Department employes to perform the services of relief work on positions in either the Freight or Yard Department is in violation of the rules of the parties' effective Agreement.

The Carrier contends that, even if Rule 28.5 (e) is so interpreted, the individuals for whom claim is here made were not entitled to be called under Rule 37(f) and, therefore, not the proper individuals to make the claims. The essence of the claims made by the Organization is for a violation of the rules of the parties' Agreement. The claims for the penalty on behalf of the individuals named are merely incident thereto. That the claims might have been made in behalf of others having, as between themselves and the named individuals, a better right to make them is of no concern to the Carrier. That fact does not relieve it of the violation and the penalty arising therefrom. No other individuals are making claims and if they should, since they are represented by the same organization, Carrier would not be required to pay more than once. See Awards 2282 and 4359 of this Division.

In view of the foregoing we find that Claim (a), (b) and (c) should be sustained but Claim (b) should be limited to pro rata in place of time and one-half. "The penalty for work lost is the rate which an employe, if the work had been regularly assigned, would have received if he had performed it." Award 5117 of this Division. Both claims are properly limited by their terms, that is, as long as the violation charged continues.

As to Claims (d) and (e), Carrier cites Rule 37(f) of the Agreement effective Sept. 1, 1949, as authority for using the regular incumbent of the position to perform the work on Sept. 1, 1949, a relief day.

Rule 37(f) is as follows:

"where work is required by the carrier to be performed on a day which is not a part of any assignment, it may be performed by an available extra or unassigned employe who will otherwise not have 40 hours of work that week; in all other cases by the regular employe."

The record does not disclose that an extra or unassigned employe was available during the week which included Sept. 1, 1949, who had less than forty hours of work. In such case the Rule authorizes the Carrier to use the regular occupant of the position. This it did. See Awards 2426 and 3271 of this Division. Claims (d) and (e) are without merit and therefore denied. '

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

AWARD