It will be observed that in the above case while claim was made for payment at the time and one-half rate the settlement was made at the straight time rate by the superintendent. We assume that payment was satisfactory since the Carrier has heard nothing further from the Organization concerning the matter.

It is not considered necessary to burden the record by citing other additional similar settlements on the property with this same Organization, the Carrier believing that the above references of previous rulings of your Board, on both this property and others, together with the voluntary settlements made on this property with the same General Chairman, will serve to show beyond any reasonable question of doubt the precedents established, not only by your Board but by the organization itself. Obviously the above referred to cases clearly support the payment already made by the Carrier in this case at the straight time rate, and deny the Employes' contention that payment should be made at the overtime rate. Therefore, it is the position of the Carrier that the Employes' claim as here presented be unqualifiedly denied.

All matters contained in this submission have been the subject of discussion and/or correspondence between the parties.

(Exhibits not reproduced.)

OPINION OF BOARD: The facts are undisputed and the Carrier admits the rules were violated.

The sole question presented is whether or not the claimant should be paid at pro rata rate or time and one-half for the Carrier's failure to call her to work.

The claimant was employed by the Carrier as a typist in the office of the Auditor of Freight and Passenger Accounts, Kingsville, Texas. The assignment is a five-day position, with Saturdays and Sundays rest days.

A typist was needed on Saturday, February 17, 1951, and Sunday, February 18, 1951. The Carrier called a person to work who held less seniority than the claimant.

Eight hours' service was rendered on Saturday and two and one-half hours' service was rendered on Sunday, the days in dispute.

The Carrier offered to pay the claimant, Mary Elmore, ten and onehalf hours' pay at the pro rata rate.

Rule 37 (c-5), Service on Rest Days, provides:

"Service rendered by employes on assigned rest days shall be paid for under Rule 43 ` · `."

"Rule 43. Notified or Called," provides, among other things, for payment of time and one-half if held in excess of two hours.

Rule 37 (c-2) and (c-3) provides, among other things, for time and one-half for employes worked more than forty hours or more than five days.

These cited rules all contemplate work performed. The right to perform work is not the equivalent of work performed. In the instant case, the claimant did not perform the work. Therefore she was not entitled to receive time and one-half. Claimant is entitled to be paid the pro rata rate.

From the record in this case, it is our understanding that this claimant has been paid for ten and one-half hours at the pro rata rate. If she has not, then the Carrier must pay the pro rata rate.

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:

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

The Agreement was violated.

AWARD