STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
(a) The Wabash Railroad Company, hereinafter referred to as "the Carrier," acted contrary to the intent of Article 8-(a) of the Agreement effective May 1, 1946, as revised effective September 1, 1949, when it failed and declined to compensate Train Dispatcher W. H. Peters by a determination of the daily rate of the position filled by multiplying the regular monthly rate by 12 and dividing the result by 261, in accordance with the provisions of Article 8-(a) for service performed in relieving the regular appointed chief train dispatcher in its Montpelier, Ohio, train dispatching office on 27 days May 1 to May 31, 19'52; 7 days June 1 to June 8, 1952; and 13 days during the period September 27 to October 11, 1952.
(b) The Wabash Railroad Company shall now compensate Train Dispatcher W. H. Peters for the difference between what he did receive for service on the chief train dispatcher position for the above number of days, which compensation the Carrier incorrectly based on Article 8-(a) of the Agreement effective May 1, 1946, providing for a deterxbination of the daily rate by multiplying the monthly rate by 12 and di:iding the result by 313, and the compensation to which the claimant is entitled by the provisions of Article 8-(a) as revised effective September 1, 1949, providing for a determination of the daily rate by multiplying the monthly rate by 12 and dividing the result by 261.
EMPLOYES' STATEMENT OF FACTS: In the existing Agreement between the Wabash Railroad Company and the train dispatchers employed thereon represented by the American Train Dispatchers Association, effective May 1, 1946, and revisions thereof, all of which are on file with your Honorable Board and by this reference made a part hereof, the following rules are pertinent to ajudication of this dispute:
It is of course obvious from the foregoing and from the second paragraph of Article 1 (a) of the basic Agreement effective May 1, 1946, between the parties hereto, that the aforementioned Agreement signed at Chicago on March 25, 1949, does not apply to the one position of Chief Train Dispatcher involved in the dispute herein.
That this fact was recognized by the representatives of the parties hereto is amply demonstrated by the contents of the aforementioned Memorandum of Agreement 'between the parties hereto which was made pursuant to the Chicago Agreement of March 25, 1949, and became effective September 1, 1'949. That Memorandum of Agreement contains no reference whatever to the position of Chief Train Dispatcher.
'The rates of pay and working conditions of individuals filling the one excepted position of Chief Train Dispatcher on each operating division of this carrier are not prescribed or circumscribed in any way by the terms of any agreement between this Carrier and its employes represented by the American Train Dispatchers Association, and therefore, the alleged dispute set up in the Association's Statement of Claim is not a dispute:
such as is described in Section 3 (i) of the Railway Labor Act and is, therefore, not a dispute over which this Board is vested with jurisdiction.
'The alleged claim set up in the Association's Statement of Claim is entirely without foundation under any rules of the Agreement in effect between the parties hereto and should be dismissed.
The Carrier affirmatively states that the substance of all matters referred to herein has been the subject of correspondence or discussion in conference between the parties hereto and made a part of the particular question in dispute.
OPINION OF BOARD: We have the same problem involved here as we had in Award 6581 and the same award is in order.
The Carrier attempts to put a different slant on the problem, howe-rer, by urging that on the days when the claimant worked the Chief Dispatcher's job he was "promoted" to the position of Chief Dispatcher, thereby removing himself from the protection of the Agreement. We think te use of the word "promoted" in this sense, even assuming it to be correctly used, does not change the situation, See Award No. 6504.
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 Yespectively Carrier and Employes within the meaning of the Railway ,Labor Act, as approved June 21, 19'34;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the Carrier did not properly comply with the provision of the Agreement. 6583-5 942