( Express and Station Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood,

1. Carrier violated the Clerks' Rules Agreement when it failed to give "five working days' advance notice in writing" to Clerk A. Stephens, St. Louis, -Missouri, who was occupying the position of Route and Car Assignment Clerk No. 072, when the position was abolished (Carrier's File 205-4992).

 2. Carrier shall now be required to compensate Clerk A. Stephens for five (5) days, at eight (8) hours each day, at pro rata rate of $41.49 per, day.

 OPINION OF BOARD: The issues before the Board are (1) whether the
 temporary occupant of a position is entitled to the required five-day written notice of abolishment, and (2) damages.

 The regular occupant of Route and Car Assignment Clerk No. 072 retired January 31, 1975. Claimant A. Stephens, a Messenger Clerk, opted to fill the vacancy. This was done pursuant to Rule 9 - FILLING OF NEW POSITIONS AND VACANCIES OF LESS THAN 30 DAYS, Section (b), concerning "temporary positions and vacancies." Claimant worked one day on the position, Saturday, February 1, 1975. He then took the position's two rest days, Sunday and Monday, February 2 and 3, 1975, only to be called on the phone February 3 to be told the position was abolished and he was to return to his regular job on February 4.

"Rule 14

REDUCING FORCE, ABOLISHING

POSITIONS, DISPLACEMENTS

AND FURLOUGHS"






        "NOTE: The word 'occupant', as used in this rule means the employe working the position at the time the abolishment notice is issued."


The complaint is that Stephens should have been given the five-day written notice. We hold that he should have. The above rule and note are literal and specific on the subject.

 Claimant did not lose work. Thus, the damages debate is between $1.75 per day or $8.75 for the five days, being the difference in rate between the tap jobs, or $41.49 per day, a total of $207.45, representing five days pay on the abolished position. We are confronted with the recurring issue whether this Board has the power to, and should, add damages beyond compensation for loss.

 Having examined all of the citations provided on both sides of this issue, we are convinced that the prevailing rule in this Division allows such damages. Awards 19899 .(Sickles) and 20311 (Lieberman). We are also convinced that this is the correct rule where clear rights are being enforced. The common law "make whole" theory often strips a right of any remedy, inviting violation anew. This has a moral base, the imperative being integrity of contract.

 Having a moral base, the rule must be applied morally. It cannot follow that every violation, technical or otherwise, automatically elicits a penalty. We should not incite the "caught you" mentality wanting to empty the exchequer on strength of miscrossed t's. That is very close to what is being sought in this case. Here we have a technical violation. The carrier mistakenly filled the vacancy and then decided to abolish the position, omitting the required notice. It got caught in a little web. But there is no invidious threat to contract integrity, no demand of conscience that a wrong be conquered not to wrong again.

        We will award the lost pay but not pay for the abolished position.


        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;
                    Award Number 21691 Page 3

                    Docket Number CL-21542


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        The contract was violated.


                    A W A R D


        Part 1, of the claim is sustained.


        Part 2. of the claim is sustained to the extent indicated in

the Opinion.
 NATIONAL RAILROAD ADJUSMIENT BOARD
                            By Order of Third Division

ATTEST: A"0'44~

        Executive Secretary


Dated at Chicago, Illinois, this 31st day of August 1977.