In Award No. 2849 (Docket No. TE-2665), which involved a claim similar and a rule almost identical to those of the present claim, Referee Mitchell stated as follows:

"This Division, as this Referee sees it, has been quite consistent in holding that retroactive pay will only be allowed from the date the claim or protest was made to the Carrier."

In Award No. 4129 (Docket No. CL-4034), Referee Francis J. Robertson had the following to say on the matter of retroactive pay claims:

"However, where there has been such a long history of acquiescence by the Employes and where there was a representative of the Brotherhood in the San Francisco Freight Office, as appears from the records in this case, it would not be unwarranted to presume that the Clerks, through their representative, had knowledge of the situation. Therefore, we believe that under these circumstances the Employes' failure to act to correct this violation constituted in effect not a change in the collective bargaining agreement but a continuing waiver of the requirements of Rule 20 thereof."

See also Award No. 2856, Docket No. CL-2780.

Further, there can be no basis for that part of the instant claim for thirty minutes per day account not afforded time to eat lunch. Carrier asserts that, during the whole period of this claim, claimant was never denied an opportunity to eat lunch and he regularly took his lunch period with pay.

In conclusion, Carrier asserts that the claim for retroactive pay should be denied in accordance with the policy of the Third Division on this issue as stated by Referee Mitchell in Award No. 2849 (supra) and further that there is positively no merit to that part of the claim which demands thirty minutes pay per day, inasmuch as claimant was never denied an opportunity to eat his lunch.

All of the above has been presented to the employes.

(Exhibits not reproduced.)

OPINION OF BOARD: On July 28, 1949 the Carrier abolished one of two telegraphers' positions which brought Rule 6 into play:

"Rule 6. Meal Period: (a) Where but one shift is worked, employes will be allowed sixty (60) consecutive minutes between eleven-thirty (11:30) and one-thirty (1:30) o'clock, day or night, for meal.

(b) If the meal period is not afforded within the allowed or agreed time-limit and is worked, the meal period shall be paid for at the pro-rata rate and thirty (3) minutes, with pay, in which to eat shall be afforded at the first opportunity."

The Carrier did not then, however, reassign the hours of the remaining position in order to allow the meal period.

On February 7, 1952 Claimant filed a claim for payment, retroactive to July 28, 1949, of one hour at straight time for each day he worked his meal period plus 30 minutes at straight time account not afforded time to eat at the first opportunity.

On April 3, 1952 the Carrier changed Claimant's assigned hours to conform with the rules and indicated a willingness to pay one hour at pro rata rate because of non-allowance of meal period, but only from the date of claim on February 7, 1952. The Carrier made no offer to pay anything

on the 30 minute claim asserting that "during the whole period of this claim, claimant was never denied an opportunity to eat lunch and he regularly took his lunch period with pay." The record contains no refutation of this assertion from the Organization. This portion of the claim must, therefore, be denied. Thus the sole question before us is whether the remaining portion of the claim is good from the date of claim or from the date of initial violation, a difference of 2 years, 5 months, 10 days.

The record fails to disclose any particular reason why the assigned hours were not changed, or why this claim was not presented immediately on the heels of the institution of the single shift. By reason of the arrival of two important trains in Sacramento between 11:30 and 1:30 it was impossible, and it still is impossible, to afford the meal period within the agreed time-limit. But there is nothing in the record to indicate affirmatively that either party was aware of any violation of the Agreement by reason of continuation of the old assignment until the claim was filed.

First. The Railway Labor Act contains no time limitation on claims; and neither does this Agreement, although many do. There is, therefore, no basis for denial of this claim unless the conduct of the Claimant or of the Organization makes it inequitable, under established Board decisions, to sustain the claim.

Second. There are numerous awards partially denying claims upon the ground of waiver, estoppel, Inches or unreasonable delay. But they all involve situations in which the evidence showed actual acquiescence in a mutually known deviation from the terms of the Agreement over a long period of time, such as specific understandings with employes or local chairmen (Awards 2849, 2576, 2593, 4122, 4428 and 5098) or unreasonable delay in prosecuting denied claims (Awards 2550, 4463, 4941, 5190, 6229 and 6656).

Lapse of time alone is not sufficient. There is no showing here that the Carrier has been actively misled by its adversaries to the belief that no claim would ever be presented or that the Carrier has been prejudiced in the presentation of any meritorious defense that it might have to the claim.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That both parties to this dispute waived oral hearing thereon;

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

The Carrier violated the Agreement as claimed except for the 30 minutes not afforded time to eat and except for any payment made on account of the violation.

AWARD

Claim sustained in accordance with the foregoing Opinion and Findings.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division