Carrier submits the claimant in any event is not entitled to the claimed overtime rate as the claim is predicated on the basis that claimant was denied the right to perform the work in question. In Award 4244 in which Referee Edward F. Carter participated, it was stated:

"The right to perform work is not the equivalent of work performed insofar as the overtime rule is concerned. Whether the overtime rate be construed as a penalty against the employer or as the rate to be paid an employe who works in excess of eight hours on any day, the fact is that the condititon which brings either into operation is that work must have been actually performed in excess of eight hours. One who claims compensation for having been deprived of work that he was entitled to perform, has not done the thing that makes the righer rate applicable. ne who has been depnvedd of work is not entitled to recover penalties accruing to the employe who actually performs the work where such penalties arise from the fact of his actually performing it. They are personal to such employe and are not a part of the loss sustained by the employe deprived of the work. The latter's loss is the rate the regularly assigned occupant of the position would have received if he had performed the work in the regular course of his employment. The reasoning contained in Award 3193 supports this holding and is reaffirmed. See Awards 2695, 3049, 3222, 3251, 3271, 4196. Awards by other referees to the same effect are: 2346 (Burque), 2823

Shake), 2859 (Youngdahl), 3232 (Thaxter) 3371 3375 3376

Tipton), 3504, 3505 (Douglas), 3609 (Rudolph), 3746, 3770, 3837 kWenkle), 3876, 3910 (Yeager), 3890 (Swaim), and 4037 (Par),

The Carrier has shown that the claimant clerk never performed the work of checking tracks on Sunday prior to September 1, 1949 nor did she perform that work on Saturday and Sunday subsequent to September 1, 1949, further, that the Agent performed such work on Sunday whenever necessary prior to September 1, 1949 and since has performed such work on Saturday to the extent necessary, in addition to performing exclusively the work in connection with handling of demurrage records and reports.

Therefore, under the facts and circumstances existing in this case, there is no basis for the claim and the Carrier respectfully requests that it be denied.

All data contained herein has been presented to the employes.

(Exhibits not reproduced.)

OPINION OF BOARD: Claimant was regularly assigned to Clerk Position No. 1290 at Cragin Station, Monday to Friday, rest days Saturday and Sunday. The entire station force at Cragin consists of one clerical position occupied by Claimant, and one position of agent. It is conceded that among other duties performed by Claimant as part of her regular assignment is that of checking the yard and industries for demurrage purposes. On Saturdays, however, this check is performed by the agent; the clerk is not called to work at all on Saturdays.

The claim is that the work of checking the yard and industries for demurrage is work which belongs to clerks under the agreement between the Carrier and the Clerks' Organization and is part of Claimant's regular assignment; and that the assignment of such work to the agent on Saturdays is a violation of that agreement. Claimant asks compensation for all Saturdays on which such work has been performed by the agent beginning with Saturday, January 5, 1952.

It is Carrier's position that the agent as well as the clerk, makes yard and industry checks during the week, and therefore that this work may be assigned just as properly to the agent on Saturdays as to the clerk. Carrier submits evidence that prior to 1949, when a 6-day week was worked, the checking of industries on Sundays was done by the agent, not the clerk; and

that since 1949, when the 5-day week was put into effect, the same work on Saturdays has always been done by the agent.

Claimant argues that the fact that such work has been done by the agent in the past does not make it any less a violation, and cites numerous awards to the effect that work which is a regular part of an employe's assignment during the week may not be assigned to another employe on Saturday.

This Division, in Award 7427 with the same referee participating as in this case, recently discussed the principles involved in cases dealing with the rights of employes to certain work under a scope rule and also under a rule granting them the right to rest day work when it is work normally performed as part of a regular 5-day assignment; that discussion is equally applicable here and need not be repeated. In that case, we were called upon to decide whether the work of signing bills of lading and of billing carload freight belonged to a clerk under the scope rule; and whether it was a part of his regular assignment so that he was entitled to a call when such work had to be performed on Saturdays. It was argued by Carrier there, as here, that such work was performed also by the agent-telegrapher during the week and thus could be assigned to him on Saturdays. On the record in that case, we decided that the occasional nature of the performance of such work by the agent-telegrapher did not prevent the work from being a part of the clerk's regular assignment so as to entitle him to its performance on Saturdays We were confronted there with a factual dispute as to whether the agenttelegrapher actually performed the clerical work during the week or not, and on the record in that case, we were able to resolve the conflict in favor otl the clerk.

The principles applicable to the case at hand are the same as those involved in Award 7427 and again the decision rests upon the resolution of a factual dispute. There are conflicting statements in the record as to whether the agent did or did not regularly perform the yard checks and industry checks which are the subject of this claim during the week while the clerk was on duty. On the whole record, including the evidence as to past practice as well as the statements, we find ourselves unable to resolve the conflict and since the resolution of the claim turns upon this factual question, we will neither sustain nor deny the claim, but will dismiss it without prejudice.

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

That there is not sufficient evidence to enable the Board to determine whether or not the Agreement has been violated.

AWARD