Thompson therefore recognizes and concedes that Mr. Bauer did not file and renew his address and that he was not restored to service as provided in paragraph (d), Rule 3, and therefore his employment rights and service terminated as provided therein. General Chairman Thompson's contentions that Bauer filed his address from September 3, 1958, are also inconsistent and in conflict with and refuted by his unsupported contentions that Bauer exercised his seniority as provided in paragraph (a), Rule 3.

General Chairman Thompson contends Bauer was carried on the seniority roster to and including July 1, 1960, and that Superintendent R. B. George acknowledged and accepted Mr. Bauer's letter of August 10, 1960, advising of his retirement on annuity under the Railroad Retirement Act, but that is immaterial and irrelevant as such action and handling was not in accordance with the agreement but was contrary thereto.

General Chairman Thompson's protest and contentions are not therefore supported by the facts and evidence, but as a matter of fact are in violation of the agreement.

General Chairman Thompson's protest is not a dispute between an employe and a carrier growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, but is clearly a dispute between a non-employe or former employe and a carrier growing out of a request for transportation which has not been presented to and is not before the Board for consideration and determination, and is a dispute over which the National Railroad Adjustment Board has no jurisdiction.

All data submitted in support of the Carrier's position have heretofore been submitted to the Employes or their duly accredited representative.

The Carrier requests ample time and opportunity to reply to any and all allegations contained in Employes' and Organization's submission and pleadings.

Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company denies each and every, all and singular, the allegations of the Organization and Employes in this alleged unadjusted dispute, claim or grievance.

For each and all of the foregoing reasons the Missouri-Kansas-Texas Railroad Company respectfully requests the Third Division, National Railroad Adjustment Board, dismiss or deny said claim and grant said Railroad Company such other relief to which it may be entitled.

(Exhibits not reproduced.)

OPINION OF BOARD: The Carrier contends that this is not a dispute between an employe and Carrier growing out of an agreement concerning rates of pay, rules or working conditions but is a dispute between a former employe and the Carrier growing out of a request for transportation.

It is the further contention of the Carrier that the only claim submitted on the property was the failure to give Claimant Bauer, a retired employe, foreign line transportation; that there was no claim presented to the Carrier on the property that his employment relationship was improperly severed by

the Carrier on or about July 3, 1959, and that his employment status should be retroactively restored to that date until his retirement in 1960; the Carrier further urges that this Board, therefore, is without jurisdiction to determine the claim now presented as Section 3(1) of the Railway Labor Act restricts the jurisdiction of this Board to the determination of the same claim which has been handled in the usual manner on the property.

In a letter, dated November 21, 1960, addressed by the General Chairman to the Vice-President-Personnel of the Carrier we note, the following:

"He has had more than 40 years service and he has enjoyed annual transportation for the past three (3) years and I personally know that it has been an error on somebody's part that they have taken the position that he is not entitled to transportation as a retired employee and will be most grateful to you if you will straighten this out, advising."

And in a letter dated December 31, 1960, from the General Chairman, the following assertion is made:

"As an extra precaution and to see that Mr. Bauer and others are not disqualified over some technicality now or in the future, we are filing a claim with you that any expense that he has to undergo, by reason of your failure to comply with the Agreement and issue him the transportation that he is entitled to under the provisions of the Agreement, Rule 19 paragraph (c) is to be reimbursed by the Railroad Company."

No claim or request for foreign line transportation or reimbursement has been presented to this Board. (It is conceded that a retired employe is not entitled to foreign line transportation as a matter of right but rather as a gift or gratuity which is usually and customarily granted by the Carrier.)

The claim presented to this Board by the appeal of the Petitioners is not in compliance with the provisions of Section 3(l) of the Railway Labor Act in that it is not the same claim which was presented to and handled by the Carrier on the property. It is essential that the issues presented here must be the same as those which were determined on the property.

It is evident that the question and the only one presented here by the Petitioners here is an academic one- What was the status of Claimant Bauer from the time he was displaced in July of 1958 until he retired in August of 1960? That question cannot be determined here as there are no questions properly before this Board for determination.

There are no issues for this Board to determine.

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

That the parties waived oral hearing;

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 ; and

AWARD