November 29, 1950. In support of its claim the Organization points not to a violation of Rule 38 with respect to the assignment of Conductor Edwards but rather to the violation with respect to the assignment of Conductor Thieleman. On that violation the Organization rests its case. Its attempt to disregard completely the fact that the Company admits its violation of the Agreement with respect to the assignment of Conductor Thieleman and the fact that the Company has offered to pay the penalty prescribed for that violation.

The Organization would be justified in presenting a claim in behalf of Conductor Edwards only if it could show a second violation of the Agreement on November 29, 1950. That, however, it cannot show. If the violation of the Agreement with respect to Conductor Thieleman is disregarded as it properly should be, the Organization's case falls completely. Award 3831 of the Third Division supports the Company's position that the claim of Conductor Edwards should be considered on its own merits and not on the basis of a rule violation which is limited to another conductor. The claim in behalf of Conductor Edwards is without merit and should be denied.

The Company affirms that all data submitted herewith in support of its position have heretofore been presented to the employe or his representative and made a part of the question in dispute.

(Exhibits not reproduced.)

OPINION OF BOARD: Claim is made in behalf of Conductor J. H. Edwards by virtue of alleged violation of Rule 38 of the Agreement and Memorandum of Understanding (Compensation for Wage Loss) of August 8, 1945. It is claimed that Claimant was improperly denied assignment to deadhead Fort Worth, Texas to Fort Hood, Texas and handle Main 7558 from Fort Hood to Camp Stoneman, California, thence deadheading to Oakland, California, reporting time for said assignment being 10:30 P. M., November 29, 1950.

Rule 38 provides:

"(a) All extra work of a district, including work arising at points where no seniority roster is maintained but which points are under the jurisdiction of that district, shall be assigned to the extra conductors of that district when available, " * *."

"(b) Extra conductors shall be furnished an assignment slip showing time and place required to report for duty, also destination."

"(c) Until service has been performed in the current month, the extra conductor with the least number of hours of service in the preceding month shall be called first. Then the conductor with the least number of hours of service in the current month shall next be called."

and Memorandum of Understanding concerning assignment of extra conductors provides:

"In the application of Paragraph C, Rule 38, Operation of Extra Conductors, of the Agreement effective September 1, 1945, between The Pullman Company and its Conductors, represented by the Order of Railway Conductors of America, it is understood that a regular signout period shall be established in each District, at which time assignments will be made for a succeeding 24-hour period. The signout period shall not be less than 30 minutes nor more than 4 hours in length."

"An extra conductor, operating under the Memorandum of Understanding of August 8th, 1945, * * * who files a claim for work to which he was entitled under the applicable rules of the Agree-

ment and which claim is sustained, shall be credited and paid for the hours involved in the lost assignment in the same manner as though he had performed the work."

During the signout period of November 28, 1950, Extra Conductor Thieleman was the first available unassigned conductor and as such was assigned to handle extra car Fort Worth to Waco, reporting time 9:15 P. M. This run was cancelled and Conductor Thieleman was properly credited and compensated therefor.

The record discloses that after the cancellation of the above run, Conductor Thieleman's signout slip and time sheet were not signed or handled, as ordinarily, by the night agent. Had this been done, his name would have been returned to the extra board, and by virtue of, his then existing total credited hours, he would have been entitled to the nxt assignment.

This assignment was MKT Train No. 27, departing at 9:10 A. M., November 29, 1950.

Due to the failure of the extra board to reflect that Conductor Thieleman was next out, this assignment, that is, MKT Train No. 27, was given to and filled by Claimant.

Soon thereafter, it was discovered by the Carrier that the assignment board failed to reflect Conductor Thieleman's proper status upon which he, that is, Thieleman, was given the assignment for which claim is here made in behalf of Conductor Edwards.

The Organization asserts that Rule 38 (c) and the Memorandum of Understanding of August 8, 1945 clearly provide that conductors not given assignments to which they are entitled, shall, in addition to other earnings, be compensated in the amount he would have earned had the assignment been worked.

The Respondent takes the position that it was Conductor Thieleman who was "run-around" by Conductor Edwards and that the latter Is not entitled to compensation under a literal interpretation of Rule 38 (c).

While it is admitted by the Respondent that Rule 38 (c) was violated insofar as Conductor Thieleman is concerned (for which payment was offered), it is contended that the allowance of the Edwards' claim would amount to the assessment of a second penalty.

It is uncontroverted that Conductor Thieleman was properly assigned to handle extra car attached to MKT Train No. 25, with departure time 9:15 P. M., November 28, 1950. It is likewise conclusive that when this run was cancelled, proper application of the Rules entitled Conductor Thieleman to the next assignment which, in this instance, was MKT Train No. 27, departure time 9:10 A. M., November 29, 1950.

The Carrier's act in failing to properly place Conductor Thieleman's name back upon the extra board after the cancellation of Train No. 25 resulted in his (Thieleman) being run-around by the Claimant. Claimant was at all times "second in line" behind Conductor Thieleman.

Any violation of the Rule must of necessity relate to the thing done.

This position of the Claimant on the extra board entitled him to an assignment only after Conductor Thieleman had received those assignments that his position on the extra board entitled him to.

Only then did applicable Rules give to the Claimant a vested right, or interest in and to subsequent assignments.

That the Carrier did not violate the Agreement.

AWARD