THIRD DIVISION
(Swplemental)
THE NEW YORK, CHICAGO AND ST. LOUIS
RAILROAD COMPANY
1. The Carrier violated and continues to violate the Agreement between the parties when, at Terminal Junction, Ohio, it requires or permits employes not covered by the Telegraphers' Agreement to transmit or receive messages, orders or reports of record both within and outside the assigned hours of the Telegrapher-Clerk assigned to this location.
2. The Carrier shall, because of the violations set forth above, commencing July 24, 1956, and thereafter so long as the violations continue, compensate J. F. Battin, the regularly assigned TelegrapherClerk, or the occupant of relief position No. 12 on the rest days of the position, or his or their successors, a "call" as provided by Rule 5 of the Agreement, for each violation occurring outside assigned hours, and
1. The rules, as interpreted by over 40 years of custom and practice, do not support the claim.
2. The Employes, during such period, have attempted without success not only once, but on six different occasions (1933, 1937, 1939, 1947, 1954, and 1957), to secure through negotiation, the adoption of a rule which would support the claim.
2. In their handling on the property, the Employes have insisted on a check of the Carrier's records to determine the number of violations as here alleged. The various Divisions of the Board have held that the Carrier should not be expected to develop claims for unnamed employes on unspecified dates.
"1. Carrier is violating the Agreement whereas it is requiring and permitting trainmen, clerks and maintenance of way employes who are not covered by the Telegraphers' Agreement, to handle (sendreceive-or deliver) communications of record at Terminal Jet. outside of the assigned hours of the Telegrapher-Clerk.
"2. A joint check of the Carrier's records shall be made to determine the amount of violations for which compensation will be paid. 11904--39 833
The original claim was presented on the basis of an alleged violation occurring on account of certain work being performed outside the assigned hours of the Telegrapher-Clerk (6:00 P. M. to 3:00 A. M.) and request for compensation was made in behalf of (a) one senior idle extra employe, one day's wages, 8 hours for each violation and (b) for J. F. Battin but-"no compensation is claimed for violations occurring when an extra employe qualifies under paragraph (a)". The claim involved alleged violations "outside assigned hours" of the Telegrapher-Clerk was filed for Battin only in the event "a senior idle extra employe was not available."
The Petitioner, for the first time, attempts to amend the Statement of Claim herein initially presented by the Petitioner on the property when the claim is submitted to this Board. In the amended claim the "unnamed claimants" are now coupled with "orders or reports of record within the assigned hours of the Telegrapher-Clerk and request is made for the first time for a "call" for each violation occurring outside assigned hours for J. F. Battin in contrast to the original statement where he was to be compensated only if a senior idle employe was not available.
(Strangely, there is no competent evidence in the Record that any of the work complained of by employes outside of the Agreement was done within the assigned hours of the Telegrapher-Clerk.)
In addition to the foregoing, in the original Statement of Claim there is no allegation as to when the violations charged against the Carrier commenced; however, in the amended Statement of Claim submitted to the Board. we note the following-"The Carrier shall, because of the violations set forth above, commencing July 24, 1956, and thereafter so long as the violations continue . . ." The Record is completely devoid of any alleged violations occurring after July 24, 1956.
For the foregoing reasons we must conclude that the Statement of Claim presented to this Board is at variance with the Statement of Claim presented to the Carrier on the property. This Board is without any authority to amend claims. We must find that the practice resorted to herein is not in accord with the provisions of Circular No. 1 of the National Railroad Adjustment Board nor in compliance with Section 3 (1) of the Railway Labor Act, consequently, this Board has no other alternative than to dismiss this claim. 11904--40 834