1936, he was regularly assigned to position of chef and allowed compensation at rate of $110.00 per month, which was the established rate at that time for chefs with less than one year's service as such. In November, 1936, when he had accumulated one year's service, his rate was increased to $120.00 per month, the rate in effect at that time for chefs with one to two years' service in that class, and in November, 1937, his rate was increased to $125.00 per month, the rate applicable to chefs with two and less than five years' experience.

"The basis on which Martin was compensated while employed as chef during period August, 1935, to December, 1937, inclusive, was not a departure from practice or precedent in arriving at rates applicable to employes such as chefs whose rates are determined by their accumulated service. As outlined above, the graduated basis of payment for chefs according to their service as such on this railway is predicated on rules established under provisions of Supplements 18 and 27 to United States Railroad Administration General Order No. 27 and agreement with the Association of Northwestern Dining Car Employes, and in accordance with the understood application that has been in effect since January 1, 1919.

"In this case, representative of the O. R. C. is requesting that this Board in effect establish a rule providing that rates of pay for chef-cooks be increased on basis of the employe's seniority in that class and without regard to his service therein, under the provisions of which if, in emergency, a second cook were promoted to a position of chef-cook establishing a seniority date therein as of August 1, 1935, and as a result of the emergency, worked but five days as chef-cook, then performed no other service as such prior to August 1, 1936, he would automatically be advance'd to the rate applicable to a chef-cook with one to two years' service as such. It is and has been the understood and agreed to application of rules in respect to rates of pay for chef-cooks that the term 'service' used therein is synonymous to the term 'experience' and before the rate of pay for a chefcook can be advanced from that applicable to a chef-cook with less than one year's service as such, he must actually have the equivalent of one year's service (experience) on this railway as a chef-cook.

"It is the position of the railway company that Frank E. Martin has been compensated at the proper rate for service as a chef-cook during period August, 1935, to December, 1937, inclusive, and that claim of the employes for increased compensation is not supported by schedule rules. The railway company reiterates its position as indicated in the statement of facts that the entire period involved in this claim being prior to the railway company entering into any agreement with the Order of Railway Conductors in respect to representation of dining car cooks, the case is not properly before this Board.

"It should be evident to the Board from the information indicated above that there is no justification for the claim as submitted, and the carrier respectfully requests that it be denied."

There is in existence an agreement between the parties bearing effective date of Mar. 1, 1938.

OPINION OF BOARD: The issue here involved is whether progressive rates of pay must be applied on the basis of actual service or of seniority dates under the circumstances of this proceeding. The evidence of record clearly establishes the following: that the progressive wage scales promulgated in Supplement 27 to General Order 27 of the United States Railroad Administration, effective February 1, 1920, governed the wages of dining car chefs on this property until the Agreement of March 1, 1938 was negotiated; that these wage scales were applied throughout this period on the basis of years of actual service, and were so applied without discrimination as between the claimant and other dining car chefs; that these governing wage scales as thus applied embraced the entire period of this

claim, August 1935 to December 1937, inclusive; that no protest against this application of the governing wage scales was submitted either during the period covered by this claim or prior thereto; that the Agreement of March 1 1938 established its own scales of progressive rates of pay, but included no provision altering the established basis for the application of such wage scales; and that the claim herein was not presented until November 14, 1938 about twenty-three months after the negotiation of the Agreement of March 1, 1937, under which the old practice was continued, and about eleven months after the expiration of the period for which claim is made. These facts indicate that the claim is entirely for retroactive compensation; that this retroactive compensation covers a period during which there was no agreement between the parties and the longestablished practice under Supplement 27 was in operation; and that this claim for retroactive compensation was not filed until long after the end of the period which it embraces. Since there is no showing of the violation of any agreement, and since, even if there had been a misapplication of Supplement 27, tere was no timely submission of any protest, this claim must be held to be without merit.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe 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 evidence of record does not disclose the violation of any agreement or any other circumstances adequately supporting the claim.

AWARD