We view the date of filing claim, June 23, 1951, as the controlling date on payments for the violation. To sustain the prior date, April 17, 1950, as requested in (2) of the claim would be to set up a precedent which might permit serious abuses in the payment of like claims to any date retroactively going back to the alleged inception of the violation. The parties are familiar with the procedure as provided in the Railway Labor Act for the filing of claims. Failure to follow the procedure in the filing must defeat the request for payment back to April 17, 1950. See Awards 2852, 4281, 4282, 4428, 4437, 4964, 4966 and 5098."

The Third Division has in other awards also repeatedly held in sustaining claims for alleged violations of agreements that the penalties claimed should be restricted to the date the claim was first presented to the Carrier in instances where the employes and their representatives offered no protest or claim and thereby acquiesced, as did the Petitioner in the instant dispute, in the handling that was later complained of. Awards Nos. 3430, 3503, 5526, 6494, 7106 and others.

The Employes' claim for penalties is also excessive in that it contemplates the payment of all or a portion of the additional hours claimed at time and one-half rates, and disregards the well established principle so often enunciated by the Third Division, that the right to work is not the equivalent of time worked under the overtime and call rules of an agreement. Third Division Awards Nos. 4645, 4934, 6544, 6670, 6750, 6853, 7242 and many others.

In conclusion, the Carrier respectfully reasserts that the Employes' claim in the instant dispute is wholly without support under the rules of the governing Dining Car Employes' Agreement and should be either denied or dismissed for the reasons stated herein.

OPINION OF BOARD: This claim arises by reason of Carrier's regularly requiring a chef and third cook to report for train No. 15 at Chicago, Illinois at 2:30 P. M. for purposes of stocking cars while requiring a second cook to report just prior to departure or at 5:00 P. M. Employes contend that the consist of kitchen crews provision of the current Agreement requires Carrier to use a chef and second cook from the earlier reporting time.

Carrier points out that a three man kitchen crew of chef, second cook and third cook, serves from train departure and thereafter, thereby satisfying all of the requirements of the consist of kitchen crews provision. It points out however, that under the circumstances the reporting time of the second cook is delayed until just before departure in order to prevent such second cooks' work month from extending to within the punitive or overtime rate period. It is undenied that such second cook, under the assignment complained of, receives more than the 205 hours work guaranteed each month. It is also undenied that he would average approximately 253 hours work if he reported at the earlier time, at least a part of which would require compensation at punitive or overtime rates. Carrier contends that it is authorized to require the second cook to report at a later time prior to departure under Article III, Section 2 (c) of the Agreement which provides:

"The right of the Company to rearrange assignments at any time to comprehend a full basic month's work or to avoid punitive overtime payments is recognized."

From an examination of the record, it appears that the rearrangement of the second cook's reporting time to just prior to departure was for the purpose of avoiding punitive overtime payments. The above quoted rule would appear to authorize such action by the Carrier under the circumstances involved herein. For this reason, the claim must be denied.

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

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

That the Agreement was not violated.

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary