(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employee PARTIES TO DISPUTE: (Southern Pacific Transportation Company (Pacific Lines)

(a) The Southern Pacific Company violated the current Clerks' Agreement when it failed to call u November 25, 1962; and, instead, improperly utilized the services of another unassigned employe on his sixth day of work in the work week.

 (b) The Southern Pacific Company shall now be required to allow E. A. Palacio eight (8) hours compensation at the applicable pro rata rate of Position 31, Yard Clerk, Yuma, Arizona.

 OPINION OF BOARD: There is no dispute concerning the facts herein. Neither is
 there disagreement over the fact that Carrier violated the
 Contract when it mistakenly assigned an employee who had already performed forty
 hours of work in the week involved to fill a vacant position in preference to
 Claimant who had worked less than forty hours in that week. The dispute herein
 involves the amount of compensation to which Claimant is entitled as a result of
 the conceded mis-assignment.

 On the day in question, a Sunday, there were two vacant positions to be filled, Position No. 31 (12:00 midnight to 8:00 A.M.) and Position No. 16 (4:00 P.M. to 12:00 midnight). Mr. C. F, Pruett, an unassigned clerk who had worked Position No. 31 on five previous days during that week, was assigned to that vacancy for the sixth time on that Sunday. Later that day Claimant was assigned to work Position No. 16, a job he had filled once before during that week. Claimant contends that under Rule 34 he was entitled to be offered the opportunity to work Position No. 31 in preference to Mr. Pruett because Mr. Pruett had already worked a full week. Claimant maintains that the injury he incurred as a result of his not being assigned to work Position No, 31 is the loss of pay for that entire trick. He asserts that the fact that he worked and was paid for working Position No, 15 later in that same day is irrelevant and should not be deemed a mitigating factor with respect to the Carrier's responsibility to redress his
The Carrier confesses its error. Carrier recognizes that the failure to assign Claimant to Position No. 31 on the day in question entitled Claimant to pay for that trick but argues that the pay which Claimant received for working the other position should be taken into account in assessing Claimant's actual loss. The difference in pay between the two tricks amounts to ninety cents. If Claimant had been properly assigned in the first place he would have been richer by that amount.


Claimant recognizes that the Rules do not entitle him to assignment to more than one eight-hour trick in any given day. His principal point herein is that the Carrier should be more attentive to its obligations under the Contract and should strive He believes that an important principle is involved; that permitting the Carrier to avoid paying Claimant in full for the trick he missed, without deduction for the pay he received for working the other trick, would encourage Carrier to make assignments capriciously and without due regard for the Rules. We can appreciate Claimant's point but we do not believe that it has been demonstrated that the mis-assignment in this case was willful, capricious or grossly negligent. Under these circumstances, Claimant's damage is pecuniary only and can be readily measured by his out-of-pocket loss.

        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 Employee 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.


                      A W A R D


Claimant to be paid ninety cents - the difference between the pay he received on the day in question and the pay he should have received.

                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: ~ :c ~ - _s
 Executive Secretary

 Dated at Chicago, Illinois, this 27th day of February 1973.

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