THE DELAWARE, LACKAWANNA & WESTERN
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Delaware, Lackawanna & Western Railroad, that:
(a) The Carrier violated Rule 2 of the Telegraphers' Agreement when on March 6, 1930, it assigned and continues to assign the agentoperator position at Avoca, New York, to intermittent service-(9:00 A. M. to 12:00 noon; 1:00 P. M. to 5:30 P. M. and 8:15 P. M. to 9:15 P. M.)-on week days. '
(b) The Carrier violated Rule 11 of the Telegraphers' Agreement when on March 6, 1930, it unilaterally suspended and continues to suspend said agent-operator position from service 5:30 P. M. to 6:00 P. M., week days.
(c) The Carrier violated Rule 5 of the Telegraphers' Agreement when on March 6, 1930, it disallowed and continues to disallow call payments for services rendered 8:15 P. M. to 9:15 P. M., week days, and
(d) The Carrier shall now retroactively pay the incumbent agentoperator from March 6, 1930, the difference between what he is entitled to under the applicable rules of the Agreement and what he was actually paid.
EMPLOYES' STATEMENT OF FACTS: An agreement by and between the parties, bearing effective date of May 1 1940, is in evidence; copies thereof are on file with the National Railroad Adjustment Board.
Effective March 6, 1930, following the abolishment of a clerk-operator position at Avoca, New York, the Carrier instructed the agent-operator to work, week-days, 9:00 A. M. to 12:00 noon, 1:00 P. M. to 5:30 P. M. and 8:15 P. M. to 9:15 P. M.; Sundays he was assigned only two Calls, one to meet trains No. 28 and No. 15, the other to meet train No. 10. Te rules. applicable in the instant proceedings, were the same prior and subsequent to May 1, 1940.
POSITION OF EMPLOYES: The following letter was directed to agentoperator J. E. Donnely under date of March 4, 1930 by the then Superintendent, Mr. W. G. Alexander. Copies were furnished to EBM, JLM, DAE, GDK, and AHM, who were officers or subordinate officers of the Carrier:
This Board has held that "Repeated violations acquiesced in by the employes may bring into operation the doctrine of estoppel or there may be a bar of laches."
Further, this Board has held in Award No. 1289 with Referee Rudolph, that where there has been such an extended delay the Carrier is justified in believing the employes have concurred in an arrangement, the claim should be denied.
OPINION OF BOARD: Based on the facts and circumstances of this me, claim for additional pro rata compensation for two hours fifteen minutes for each week day, holidays excepted, should be sustained for the period July 11, 1944, to and including September 30, 1944.
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
Claim for additional pro rata compensation for two hours fifteen minutes for each week day, holidays excepted, will be sustained for the period July 11, 194'4, to and including September 30, 1944.