THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-4896) that:
EMPLOYES' STATEMENT OF FACTS: This dispute is between the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes as the representative of the class or craft of employes in which the Claimant in this case held a position and the Pennsylvania Railroad Company-hereinafter referred to as the Brotherhood and Carrier, respectively.
There is in effect a Rules Agreement, effective May 1, 1942, except as amended, covering Clerical, Other Office, Station and Storehouse Employes between the Carrier and this Brotherhood which the Carrier has filed with the National Mediation Board in accordance with Section 5, Third (e), of the Railway Labor Act, and also with the National Railroad Adjustment Board. This Rules Agreement will be considered a part of this Statement of Facts. Various Rules thereof may be referred to herein from time to time without quoting in full.
The Claimant, J. J. Radice, is the incumbent of a regular position of Station Baggageman, Symbol No. 7-12-A-139, tour of duty 11:59 P. M. to
therefore the claim of the Employes as presented to your Honorable Board is wholly without merit.
The Carrier respectfully submits that your Honorable Board should dismiss or deny the claim of the Employes in this matter.
OPINION OF BOARD: Mr. J. J. Radice, incumbent of the regular position of Station Baggageman, Symbol 7-12A139, on Platform 4 of the Pennsylvania Station, New York, New York, had seniority on the roster of the New York Region in Group 2. Mr. J. J. Reilly was assigned as an extra station baggageman and regularly was used to fill the position on the M-4 Elevator on tour 3 for the period of August 15, 1952, to December 6, 1952.
Mr. Radice filed claim on the grounds that Carrier violated Rule 2-A-1 when it permitted Mr. Reilly to serve on his assignment as an extra for more than 30 days without bulletining the position. Mr. Radice was allowed $576.87 for the period from October 13, 1952 to December 9, 1952, the date Mr, Reilly ceased to work the position. After an interval Mr. Radice advised Carrier that the settlement was not satisfactory and pursued the identical claim on the grounds that Carrier continued to violate the same rule of the Agreement by assigning the work to other extra employes until May 9, 1953, when the violation ceased.
Carrier counters with the assertion that it already settled the claim with the payment of $576.87. It further submits that Claimant is not entitled to additional compensation, for on December 9, 1952, the violation was corrected by notice given to Baggageman C. Dowling, the incumbent of regular position S-4-C97, changing his assignment location to Elevator M-4 on Platform 4.
Although Claimant takes the position that the acceptance of this compensation was conditional pending the correction of the violation, we find significant that at first Claimant only objected to the commencement date of the settlement; it did not protest the termination date. Later, in pursuing the original claim, he requested compensation for the period beyond the termination date of December 9 to extend to May 9, 1953. The monetary settlement was made on the basis that Mr. Reilly no longer occupied the position after December 9. Although Claimant asserts that other extra employes occupied the position, he fails to name them or fails to present evidence that Carrier did not assign a regular Baggageman, C. Dowling, to the position on December 9, 1952.
The record does not include the December 9th notice which Organization denies knowledge of but Claimant does not convince us that Mr. Dowling did not receive such notice and that he did not take over the position on December 10th.
In view of the compensation already received by Claimant for the period ending December 9, 1952, and in view of the fact that Claimant has not supported his contention that other extra employes occupied the position after that date and that the regular employe, Mr. Dowling, did not take over the position on December 10th, we cannot sustain the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: 12920.-14 111