( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9570)

(a) Carrier violated Rule 42 and others of the Clerks' General Agreement when on August 29, 1979 it failed to fill or compensate anyone on or for Position T-4, Agent-Operator at Muncie, Indiana.

 (b) Clerk John B. Carpenter now be allowed eight (8) hours pay at the pro rata rate of $70.47 per day in addition to other earnings for this date as a result of this violation.

 OPINION OF BOARD: Clerk D. A. Doty is the regular assigned employe of the Agent-
 Operator T-4 position at Muncie, Indiana. His workweek extends from Monday through Friday, 8:00 A.M. - 5:00 P.M. with rest days of Saturday and Sunday. Clerk Doty is also an Extra Train Dispatcher and had worked as Train Dispatcher on August 28, 1979 in accordance with Rule 22;j of the Clerk's Agreement which specifies in part that clerical employes holding seniority as Train Dispatchers will be required to protect such seniority and accept such work as provided in the applicable Train Dispatchers' Agreement. Carrier had assigned an extra clerk to protect his position on August 28, 1979, but this employe who had marked off sick at the end of the August 28 tour of duty could not protect the AgentOperator T-4 pos assignment on August 29 because of the Hours of Service Law and Carrier blanked his position. Claimant worked his assigned hours on August 29 which coincided with the regular hours of Clerk Doty's position, but he contested Carrier's action by filing a claim on August 29, 1979. He asserted that Rule 42 of the Clerk's Agreement was violated when Carrier blanked the T-4 position. In particular, he contended that Rule 42 guaranteed the employe or the position five days per week. Rule 42 - Weekly Guarantee - reads as follows:



In defense of its action, Carrier asserts that when the available qualified extra clerk, who was called to fill the T-4 vacancy marked off sick on August 29, 1979, it had no available employe to protect the position. It avers that Clerk


Doty was paid for August 29 pursuant to Rule 4(e) of the Train Dispatchers' Agreement and Claimant was under pay working his own regular Chief Clerk's position, whose hours of employment coincided with the position blanked. It argues that it properly compensated Clerk Doty at the pro rata rate of his regularly assigned position and notes that Claimant had never filed a letter requesting that he be rearranged to the T-4 position.

 In reviewing this case, the Board finds that the Agreement was technically violated. Rule 42, which is a clear and unambiguous provision explicitly precludes the reduction of days for regularly assigned employes and/or positions covered by the Clerk's Agreement below five (5) days. It is a guaranteed workweek rule. The only exception permitted is when one of the nine holidays specified in Rule 39 Section (b) occur within the five days constituting the workweek to the extent of such holiday. This exception is not present here. Carrier recognized the necessity of covering the T-4 position when it assigned an extra clerk to protect it on August 29, before the extra clerk marked off sick. Thus, we must conclude that it was mindful that the position should have been protected. Whether Clerk Doty was precluded from returning to his regular position and was paid under the Train Dispatchers' Agreement is of no consequence here since Rule 42 plainly provides a weekly guarantee to the position covered by the Clerk's Agreement. The negotiators of that provision purposely distinguished between employes and positions and we must give effect to that distinction. The Agent-Operator T-4 position cannot be reduced below five (5) days. This is the pivotal focus of Rule 42 and it reflects the intent of the contracting parties.

 Correlatively, we cannot agree that the monetary portion of the claim is justified under these circumstances since neither Claimant nor any other identifiable employe suffered loss from the violation. Claimant was under pay, working his regular position at the time, and there was no other available employe to fill the position. The only available employe who was assigned the position on August 29, 1979 had unexpectedly marked off sick, and Claimant had not filed a letter requesting that he be rearranged to the T-4 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;

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

        That the Agreement was violated.

          Award Number 24806 Page 3

                    Docket Number CL-24580

                    A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST:
        Nancy ever - Executive Secretary


Dated at Chicago, Illinois, this 30th day of April, 1984.