(Order of Railroad Telegraphers and the Southern Pacific Company): "* * a correction in a seniority date should not operate retroactively unless the parties making the correction expressly agree that it shall. Any other interpretation would be too productive of confusion, controversy, and expense." Seniority rosters may be corrected to cover the future, but these awards hold that they will not be reopened in cases where the rosters have operated as the established modus vivendi over a long period of years without protest.

A further reason why this claim should not be sustained exists. Mr. Mahafey's position on the helper machinist seniority roster affected all the men junior to him on that roster, and it was in that group sense that employes requested, in Docket No. 395, that his seniority date should be changed. However, when Mr. Burge was furloughed on April 16, 1939, there accrued to him a separate and distinct personal grievance. Rule 35 of the agreement between the Norfolk and Western Railway Company and the machinists, etc., effective July 15, 1938, provides in pertinent part:

Mr. Burge did not complain to his foreman within the ten day period required by Rule 35. It is a matter of record in this case that a group protest had been made to the management on September 14, 1938, against Mahafey's seniority status, but neither within the ten day period subsequent to Mr. Burge's furlough, nor indeed in the prosecution of the group demand for change in that status to the Second Division in Docket No. 395, did Mr. Burge or his representatives conceive that he had been aggrieved. The present alleged grievance was not matured under the procedure of the collective bargaining agreement and the carrier submits that this claim for lost time is barred by cited Rule 35.

The claim on behalf of Mr. Burge was not presented to the carrier until after the seniority roster had been altered, (October 17, 1939). In Award 684 (Brotherhood of Railroad Signalmen of America and the Denver Union Terminal Railway Company) the Third Division said: "* claim for compensation * * had not been presented to the carrier until the conditions of which complaint is made had disappeared, thus causing it to be one not cognizable by this Division." (Underscoring ours.) The reasoning of that

award has particular application here. It is true that while Docket No. 395 was pending before the Second Division, the representative of the machinists informed the management for the first time that if the employes prevailed in their contention that Mr. Mahafey's seniority date should be changed, they would then make demand upon the carrier for penalty payment for having furloughed Mr. Burge. The distinction between the vague, indefinite expression of a possible intention of filing a claim and the actual presentation of a claim is of course obvious. However, there was a clear indication that the representatives of the machinists conceived that Mr. Burge's rights were dependent upon the decision of the Second Division and that without such an award no grievance existed. The carrier submits that the theory that Mr. Burge ever had a bona fide grievance is not substantiated by Award 395 because the order of the Division was expressly limited to a change on the seniority roster on September 29, 1939, and contained no retroactive application.

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

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division