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 made the subject of discussion and/or correspondence between the parties.

OPINION OF BOARD: The facts of this case are not in dispute and there is no need for encumbering the record by restating them, even in summarized form. Carrier has conceded the current Agreement was violated by using the wrong man for the seven Sundays in controversy and has already paid Claimant seven days' pay for that period of time at the pro rata rate. Therefore the sole question involved is whether he should be paid at the straight time or the time and one-half rate.

The Brotherhood insists that, since it is admitted Claimant was entitled to the work and has been paid seven days at the pro rata rate, Rule 43 (b) of the current Agreement is controlling as to the basis of payment. Such rule reads:

Admitting the assignment of the involved work to another employe was erroneous and that Claimant was entitled thereto does not warrant a conclusion the portion of the above quoted rule is decisive of the single question involved as the Brotherhood suggests. Claimants was not called regularly, in fact, was not called at all. He performed no work pursuant to a call on Sunday and that day was not included in the assigned days of his regular assignment. All these facts impel the view that Rule 43 (b) has no application. Moreover the referee, now sitting as a member of this Division of the Board, is of the opinion the confronting facts and circumstances bring this case within the rule, followed by many, of what he deems to be the better reasoned decisions of the Division, that where only the right to perform work is involved the penalty for work lost is the rate of the position. That, since Rule 43 (b) is inapplicable, would be the pro rata rate, which has already been paid to the Claimant. For just a few of the numerous Awards adhering to and applying such rule under the facts and circumstances there involved, noting referees, see Awards Nos. 6019, 5939, 5929, 5419, 4962 (Parker); 6158 (Jasper); 5049 (Kelliher); 3955, 4244, 5176 (Carter); 5261, 5267, 5333 (Robertson); 5967 (Douglas); 5831, 5898 (Daugherty); 5142 (Coffey); 5950 (Guthrie); 6262 (Wenke).

In conclusion it should be stated Claimant directs our attention to the rule to be found in numerous Awards stating that the penalty rate for work lost because it was given to one not entitled to it under an involved agreement is the rate which the occupant of the regular position to whom it belonged would have received if he had performed the work. We have examined the Awards cited by Claimant and many others. It can be said that most of them deal with situations where the position of a regularly assigned employe has been temporarily vacated and what is there stated relates to the rate applicable to the day of the temporarily vacated position. Even so it cannot be denied some of the Awards cited by Claimant hold contrary to the conclusion announced in the preceding paragraph of this Opinion. As to them it suffices to say that after careful analysis and examination of all such Awards the present referee cannot subscribe to the conclusions therein reached or the views there expressed.

Based on what has been heretofore stated it follows Claimant's contention he was entitled to be paid at the rate of time and one-half cannot be upheld.

AWARD