i ozra 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6996 '
SECOND DIVISION Docket No. 6780
The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
System Federation No. 71 Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Burlington Northern
Inc
Dispute: Claim of Employes:
1. That under the current agreement Carmen John Helzer, H. Jacobs,
M. L. Hessheimr and L. A. Moser, Lincoln, -febraslm were improperly
' compensated for services performed as Foremen on dates given below;
2. That the Carrier be ordered to additionally compensate the abovementioned Carmen the difference in pay of September 30, 1972 rate
and the present rate for the dates shown below, which represent:,
the work days that each relieved supervisors (foremen) under Rule
32 of the cuxrent anreempnt.
On October 27, 1973, November 3, 6, 7,.8, 9, 10, 13, 14, 15, 16,
~,) 17, 20, 21, 22, 24, 27, 28, 29, 30, December 1, 13, 26, 27, 1972
and January 8, 9, 10, 11, 12, 15, 24, February 5, 6, 21, 22, 26,
March 5, 8, 9, 13, 14, 1973, Carmian
John
Helzer temporarily filled
the position held by Foreman D. D. Burt.
On November 6, 7, 8, 9, 10, 13, 1972 Carman H. Jacobs temporarily
filled the position held by Foreman Paul Portsche.
On
October 25, November 25, December 4, 5, 16, 17, 18, 19, 20, '23,
24, 25, 26, 27, 1972 and on February 17, 18, 1973 Carman M. L..
Hessheimer temporarily filled the position held by Foreman W. Meyn;
on October 28, November 28, 1972 temporarily filled the position
held by-Foreman L. W: Hixon; on December 28, 29, 1972, February 28,
1973 temporarily filled the position held by Foreman J. W. Ingle
bright; and on December 13, 14, 15, 1972, January 8, 9, February
26, 1973 temporarily filled the position, held by Foreman Paul Portsche.
On October 31, November 14, December 12, 13, 14, 15, 16, 1972 and on
January 31, 1973 Carman L. Moser temporarily filled the position
held by Foreman G. Rezek; on November 15, 1972, January 8, 9, 10,
11, 1973 temporarily filled the position held by Foreman P. Worster;
and on November 159 December 20, 21, 22, 23~ 24, 27, 289 29: 30, 31s
1973 temporarily filled the position held by Foreman W. Dorsey and
on January
5, 6, 7, 8, 1973 temporarily filled the position held
by Foreman J. Tapley.
^, Form 1 Award No. 6996
Page 2 Docket No. 6780
2-BN-CM-'76
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.
This Division of the Adjustment Board has jurisdiction over the
dispute
involved herein
.
Parties to said dispute waived right of appearance at hearing thereon.
Claimants are carmen who were assigned temporarily to fill foremen's
positions on the claim dates. They were paid the foremen's rate that prevailed
at that time but did not receive a subsequent increase that was agreed to for
foremen on March 159 1973, and made retroactive to October
1.D
1972. Tha period.
of retroactivity covered the dates on which Clairsants worked as foremen and 'they
now seek the additional amount involved in the foremen's increase.
Carrier contends that the claim must be dismissed since it %- as not
0
filed within the sixty day time limit prescribed by Rule 34.
The claim was presented in writing to the proper Carrier officer on lay
18, 1973, and the critical question is whether the occurrence upon which the claim
is based took place during the sixty day period inn-ediately preceding that date,
a s required by Rule 34. Carrier contends that the date of the occurrence is
March 15, 1973, the effective date of the agreement to increase the wages of
foremen. We disagree.
No claim arose until payment of the increase was made and Claimants
discovered that they would not receive the increase: That conclusion is inescapable, in our opinion, and we will overrule Carrier's time limit objection. :See
Second Division Awards 2467, 2480 and 5385.
' We also find no merit in Carrier's theory that the claim filed with the
Board contains a substmntial variance. That claim is specific and clear and does
not enlarge or vary substantially from the claim processed on the property.
As to the merits, the claim is well supported lay Rule 32 which reads
as follows:
"An employe assigned temporarily to fill a Foreman position
will assume the hours of service and rate of pay applying to
such position. Daily rate to be determined by dividing the
monthly rate by the number of days Foreman is required to
work during that months"
_ Form 1 Award fo. 6996
Page 3 Docket No. 6780
2-BN-CM-176
The language to which the parties have committed themselves in that Rule
and particularly the formula agreed upon in its second sentence clearly establish
that Claimants are entitled to have the retroactive pay included
in
the rate
paid them for temporary service as foremen. This is not a wage rate that this
Board is establishing; it is a rate of compensation due Claimants by reason of
the parties'
own
agreement.
A WA R D
Cla im susta fined .
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board.
Rosemarie Brasch - Administrative Assist n
(,,Dated at Chicago, Illinois, this 30th day of January, 1976.