to the Carrier-is materially pertinent in the Board's determining the merit, or rather lack of merit, in the situation here involved.

Other awards rendered by your Board, although not so closely related to the circumstances in this case as those referred to above, but which, we believe, are not without significance, are: 72, 213, 1425, 2436, 3603, 3727, 4050, 486, 4208.

With respect to Rule 37 (c-6) upon which the Employes base this claim, it is the position of the Carrier that, interpreted under the rules of English Grammar, Rule 37 (c-6) is not mandatory in any respect-not even as to use of the regular employe when there is no extra or unassigned employe available. The rule is one elliptical sentence and, in the absence of a verb in the last clause, such clause has the meaning that would be expressly stated if it read "in all other cases it may be performed by the regular employe". It would have been easy to make the clause mandatory if such was the intention; but, as the rule stands, there is not a mandatory word in it.

The Carrier might well say that this rule does not compel the use of any particular employe for work of the nature here involved and therefore could not have been violated. The most that could be said is that, not having used either of the employes designated in the rule, the Carrier merely waived the privilege of doing so.

When consideration is given to the following facts, which can not be successfully challenged:

(1) Claimant Handorf is not the party who was entitled to perform the work in question;

(2) No claim or protest was submitted by claimant, either during or subsequent to the period for which claim is made;

(3) The situation forming the basis for this claim ceased to exist some six weeks prior to the date the General Chairman called the matter to the Carrier's attention and subsequently filed claim;

It is believed your Board will concur in the position of the Carrier that the claim is without basis under the provisions of the current working agreement relied upon by the Employes (Rule 37 (c-6), and under previous rulings of the Board, hereinabove pointed out, the claim is without merit, and should, therefore, be denied.

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

(Exhibits not reproduced).

OPINION OF BOARD: W. L. Price was employed as a yard clerk on a five-day assignment, Monday through Friday, with rest days Saturday and Sunday.

It was necessary to work the above assignment Saturdays or Sundays on thirteen days, from January 7, 1951, through June 23, 1951. No extra or unassigned men were available. Neither Price, the regular employe, nor the Claimant, W, A. Handorf, the next in seniority to Price, was called to work on the Saturdays and Sundays here involved. The Carrier called Leroy Blackman, who had less seniority than the Claimant.

In July, 1951, these facts came to the attention of the Carrier, and the Carrier immediately corrected the situation,

The Organization discussed this claim with the Carrier for the first time on August 10, 1951, and filed this claim on August 13, 1951.

The Carrier contends that the Claimant is not the person entitled to perform the work, and therefore he has no basis for this claim,

There being no extra or unassigned employe available, the regular employe, Price, was entitled to perform the work. When the Carrier failed to call Price, it was obligated under the rules to call the next senior available employe, who was Handorf.

Under the Carrier's contention, any clerk could be called regardless of seniority. This is forbidden by the agreement under the seniority rule.

The fact that Price has failed to file his claim and abandoned it, does not keep the Claimant, Handorf, from filing a claim for the violation. The Carrier would have to pay for the violation only once.

The Carrier next contends that the Claimant did not make claim during the period of time when the contract was being violated; and the claim was not mentioned or discussed or filed until approximately six weeks after the Carrier, of its own volition, corrected the violation. Therefore, the Carrier contends there is no basis for the claim. With this we cannot agree. There is no time limit rule here involved, nor is there any showing of ,aches or estoppel on the part of the Claimant. The fact that the Carrier corrected its own violation did not stop the Claimant from filing a claim. There is no showing that the Claimant knew of the violation before the discussion of it with the Carrier or that he acquiesced in it. The violation, correction, and filing of the claim all took place within eight months.

Under the facts, the agreement was violated, and the Claimant was entitled to be paid at the pro rata rate.

FINAINGS: 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

That the Agreement was violated.

AWARD