visions of Paragraph (c) of Rule 39 are ignored by the claimant and his representatives and, similarly, the settlement in conference on June 4, 1940, confirmed in Exhibits No. 2 and No. 3, is ignored. Furthermore, they ignore the fact that the condition at the time of the settlement of June 4, 1940, was that the No. 1 Pumper would remain at and protect the operation of the Plant fourteen hours per day. Note particularly the third paragraph of letter Exhibit No. 1. There was no change in the assigned hours made a part of settlement shown in Exhibits Nos. 1, 2 and 3, and consequently, the requested increase in salary rate now is beyond the provisions of Rule 39. Therefore, it is a request which may be pursued only in accordance with Section 6 of the Railway Labor Act and, as such, is not within the jurisdiction of this Board.

The services of pumpers are intermittent. The pumps are set in motion, and the pumper remains in attendance, not necessarily in the pumphouse, but sufficiently nearby to detect any interference; looking in at the plant occasionally to see that operation is in order, lubricating moving parts which otherwise might run dry, and determining the amount of water pumped and the time when pumps are to be shut off. The Plant at Lake Bracken.is and has been run on a continuous basis. The capacity is increased when necessary by operating auxiliary pump. The claimant lives on the property at the Pumping Plant and has considerable inactive time during the fourteen hour spread referred to in Exhibit No. 1.

(1) the conditions of employment during the period of the claim are the same as those on which the settlement of June 4, 1940, was founded;

(2) the settlement of June 4, 1940, fixed the rate for all services rendered and all time spent on the property;

(3) claim for adjustment under Rule 39 (a) is tuntenable because the hours of assignment were not changed; and

(4) the Board lacks authority to adjust the rate inasmuch as the hours of assignment shown in letter Exhibit No. 1 were the basis of settlement of June 4, 1940, and have not since been changed.

The Board should take cognizance of the delay in the handling of this case. The claim was discussed in conference on November 18, 1941, and the Management wrote the General Chairman on November 19, 1941. The General Chairman requested that joint submission to the Board be made on August 13, 1942, which the Management declined on August 19, 1942. After elapse of more than a year and a half from that time, the case has been resurrected for consideration by the Board.

OPINION OF BOARD: On September 15, 1939, J. W. Durbin was assigned the No. 1 pumper position at Lake Bracken, Illinois, at a salary of $90.00 per month. The assigned hours were listed 10 each day on a calendar basis. On February 9, 1940, the Organization complained that Durbin was required to work 14 hours each day with the result that an agreement was made, effective January 1, 1940, to adjust the salary rate to $100.00 per month, such salary to compensate for all services rendered and all time spent on the property. On July 1, 1941, the General Chairman again demanded an increase in pay for Durbin based on the fact that he was required to work more than 10 hours each day. The Carrier denied the claim and it is now before us for consideration.

Subsequent general wage increases, effective December 1, 1941, and December 27, 1943, brought the basic salary rate to $173.38, these increases being figured on a 10-hour day. However, another agreement effective December 10, 1943, providing time and one-haf rate for actual time worked over

eight hours per day, caused the basic rate to be changed to $138.70 per month for eight hours each day and overtime averaging $78.02 per month, making a total monthly salary of approximately $216.72.

Claimant asks an increase retroactive to June 1, 1941, for all service performed in excess of 10 hours per calendar day. The Carrier contends that the services of the position were intermittent within the meaning of Rule 39 (c) providing "No assigned hours will be designated for employes performing intermittent service, such as pumpers, required to work, wait or travel, as regulated by train service or the character of their wok." The record shows that Durbin was required to be in attendance upon his work during the whole period of his assignment. His duties required him to be sufficiently close to the pump house to detect any difficulty, to look in at the plant occasionally to see that it was operating properly, to keep moving parts lubricated and to determine the amount of water pumped and the time to shut down the pumps. There was no time during his assigned hours when Durbin could be released from duty. This is not intermittent work within the contemplation of Rule 39 (c).

The Carrier contends that the Board lacks authority to adjust the rate because the hours of assignment were the basis of a settlement as of June 4, 1940, and have not been subsequently changed. It will be noted that the adjustment of June 4, 1940, effective retroactively as of January 1, 1940, was the result of a complaint on the part of the Organization that Durbin was working in excess of 10 hours. The adjustment was brought about by an offer of the Carrier to authorize a monthly rate of $100.00, effective January 1, 1940, "with the further understanding that these monthly rates cover all services rendered and all time spent on the property based upon requirements as we now know them to be." The General Chairman acknowledged this understanding as to the new monthly rate of pay and said: "It is understood that these increases shall not cancel the request contained in our formal notice of January 19, 1940, wherein we requested increases in rates of pay for these positions." Increases were subsequently negotiated and put in effect pursuant to the request of January 19, 1940. No change in the assigned hours of the position was made until the agreement of December 10, 1943, became effective. It seems clear to us that the Organization negotiated with the Carrier relative to working Durbin more than 10 hours and that an agreement was made which disposes of the question of the hours of assignment of the position until there was a change of conditions or until the agreement was superseded by a new one. The Carrier and the Organization settled the dispute by agreement and we can see no reason why claimant should be permitted to file a new claim merely because he is now dissatisfied with the settlement made. He accepted the increased Salary including the retroactive pay agreed upon. Both he and his Organization are now estopped to dispute the agreement made.

This leads us to the conclusion that the agreement of June 4, 1940, effective January 1 1940 controls the salary rate of this position up to December 1, 1941, when the next general wage increase became effective. During that period, the basic rate was $100.00 per month for the time actually worked which the record shows to be 14 hours each day. But when the general wage increase of December 1, 1941 became effective, we think it should have been applied on the basis of a 14-hour day, that being the daily hourly assignment of the position subsequent to the agreement of June 4, 1940. The increased rate would then be the established rate of the position until the agreement of December 10, 1943 became effective, at which time the assignment of hours was adjusted on an entirely new basis which raises no issue for our consideration in this case.

In other words, Durbin has been correctly compensated except that the general wage increase of December 1, 1941, should have been applied on a 14-hour per day basis rather than on a 10-hour per day basis.

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 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

AWARD