"While attending a joint meeting in Atlanta I discussed this case with the affected employes as well as other members of their gang who advised of the circumstances involved. They state that it was raining on April 27 and the entire gang had quit work and sought shelter along with Chief Engineer J. B. Wilson who was on location. Foreman Wilson advised Track Laborers Burton and Butler to return to their regular duties of knocking off rail anchors and pulling spikes, in the rain and before the rest of the gang returned to work, or they would be considered out of service. Foreman Wilson's actions constituted unjust treatment and entitled these men to a hearing in accordance with the agreement, thus the reason for the claim being filed."
It will be noted that the only thing correct in Mr. Padgett's letter of July 26 was the fact that it was raining on the day in question.
On August 31, 1961, General Chairman Padgett wrote Carrier's director of personnel, requesting another conference to further discuss this matter, that discussion being held on November 3, 1961, at which time Mr. Padgett requested that Carrier consider this matter on a leniency basis and permit Burton and Butler to go back to work with seniority and vacation rights unimpaired. Mr. Padgett was advised that Carrier could not treat this matter on a leniency basis, that this was not a discipline case, that no charges had been filed by Carrier against these men, that they had left the service of their own accord, but that, however, the men had a perfect right to apply for re-employment and, if granted, they would be in the category of new employes. Following this last conference the matter lay dormant until April 19, 1962, one day before the time limit expired, when the organization progressed same to this Division.
OPINION OF BOARD: At the threshold we are faced with the contention of the Carrier in its submission that the Time Limit on Claims rule was not complied with by the Petitioner in that claim for pay for time lost by the Claimants was not presented wtihin sixty days of the date of the occurrence giving rise to the claim.
A review of the record shows that the time limit issue was not raised by the Carrier in the handling of the dispute on the property. It is, therefore, precluded from raising the issue for the first time before the Board.
As to the merits of the dispute, the record is in conflict as to whether the Claimants quit of their own volition or were dismissed by the foreman.
Based on the entire record, the Board is of the opinion that a proper solution of the entire controversy is that the Claimants be restored to the service, with seniority and vacation rights unimpaired, but without any compensation for time lost while out of service.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and 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