was not entitled to the overtime on Saturday, June 17, 1961, based on incumbency rights.

Carrier has shown in the foregoing that:

1. Work performed by Supervisor Godfrey was regularly assigned to his position as supervisor and was not restricted to labor and material distributions.

2. Godfrey had sole incumbency rights to the work as Supervisor and was properly used on claim date under the provisions of Rule 25 (b) of the Clerks' Agreement.

3. In failing to use Mr. Godfrey the Carrier would have been subject to claim.

Without prejudice to the position set forth in the preceding paragraphs, the Carrier hereby enters protest against time and one-half payment being made in any eventuality in the disposition of this case. The basis for this protest is found in Awards 7203, 7190, 7188, 7138 and 7105 and others going back so many years that the principle of denial of punitive pay for work not done is so well established there is no need to cite a long list of awards of such import.

In view of the foregoing, there has been no violation as alleged. The claim is not supported by the provisions of the Clerks' Agreement and the Carrier respectfully requests that it be denied.

OPINION OF BOARD: The Claimant in this case alleges a violation of both the seniority rules and the overtime rule of the Agreement. It is her contention that overtime work performed on Saturday, June 17, 1961 by Clerk, George Godfrey, her supervisor, was work which she performed regularly on her assignment as Assistant Labor and Material Clerk, tour of duty being from Monday to Friday inclusive with rest days of Saturday and Sunday. She maintains that this work consisted of preparing journal vouchers from regular labor distribution of Kansas City Terminal, Kansas Division and Central Division; Train and Engineman's labor distribution from Omaha Division, Kansas Division and Central Division; and material distribution from Kansas City Terminal, Omaha Division and Central Division. She further alleges that this work was regularly assigned to her position and was not regularly performed by the Supervisor; that he prepares only the journal vouchers from the Gulf District distributions. The Supervisor, to whom this work was assigned, was junior to her in date of service. She bases her case on the following rules:

Seniority-Rule 3, Section (a), first paragraph, provides:

"Seniority of an employe, other than laborer, shall date from the date and time he begins compensated service in the district where employed, except that in the Accounting Machine Bureau an unassigned employe used to fill a temporary vacancy in other than his home department does not establish seniority rights by reason of such service."

Overtime and Calls--Rule 25, Section (b) provides in part:

"(b) No overtime will be worked without authority of superior officer except in case of emergency when advance authority is not obtainable.

To avoid discrimination as between employes to be used on

authorized overtime work, the incumbents of positions which require overtime hours will be used if possible.

In the application of Rule 25 (b) in the Law (Freight Claim) and Accounting Departments, General Offices, St. Louis, the following shall apply:

In working overtime before or after assigned hours, employes regularly assigned will be utilized; that is, when it is necessary to work employes overtime on the work which is that constituting the regular assigned duties of their positions during regular hours, the incumbents of such positions will have prior rights to the overtime work. Where overtime required involves work of more or less than the number of employes regularly assigned or utilized, senior qualified employes regularly employed on the class or classes of work to be performed will be utilized."

We have no quarrel with the above cited miss, nor their application in a given factual situation. However, there is a basic disagreement of fact involved in this case. The Claimant alleges that it is her duty to prepare vouchers etc., whereas the Carrier alleges that this work is also part of the responsibility of Supervisor Godfrey, to whom the work was given. Job descriptions and bulletins have been introduced into evidence by both opposing factions. They do little to enlighten us as to the fundamental question posed. The Supervisor's job description lists as one of his duties the compiling of miscellaneous journal vouchers. The Claimants' job description lists as one of her duties the preparation of journal vouchers. There is no stringent line of demarcation as to which employe prepares vouchers from the Western District, involved in this case, or the Gulf District or any other district for that matter. The evidence presented is conflicting and contradictory. In view of this, we find ourselves unable to resolve this most essential question of fact, and accordingly will neither sustain nor deny the claim, but will dismiss it.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 claim must be dismissed for lack of evidence.

AWARD