THIRD DIVISION
(Supplemental)
THE DENVER AND RIO GRANDE WESTERN RAILROAD
COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that
EMPLOYES' STATEMENT OF FACTS: The claimant was the regular assigned operator of Dragline No. D-30. His regularly assigned hours were from 7:30 A. M. to 4:00 P. M., which included a thirty minute meal period. His assigned work days were Monday through Friday of each week.
On Sunday, July 12, 1964, the claimant's outfit cars, consisting of a machine car and a tool car, were moved from Mack, Colorado to Steamboat Springs, Colorado. Part of this move was made between the hours of 7:30 A. Al. and 4 too P. M.
The claimant properly submitted eight (8) hours of travel time for the period from 7:30 A. M. to 4:00 P. M. on July 12, 1964, on the first period of the July, 1964 time roll. The travel time was deleted and no reason given the claimant for said deletion.
Claim was timely and properly presented and handled at all stages of appeal up to and including the Carrier's highest appellate officer.
OPINION OF BOARD: July 12, 1964 was a Sunday and a rest day for Claimant herein. On this date Claimant's box car filled with tools and his Dragline D 30 was moved from Mack to Steamboat Springs. The dragline D 30 was moved on a flatbed car. While this claim was being handled on the property, the above equipment was referred to as "Claimant's machine and tool car(s)." The Claim as presented to this Board refers to this equipment as "Claimant's outfit car (s)". On his assigned days claimant was drawing seven dollars per diem. Claimant contends he is entitled to travel time on the date in question under Rule 15 (a) of the agreement.
Carrier requests that this Claim be dismissed for the reason that Claimant referred to the equipment as "machine and tool cars" while this matter was being handled on the property, and as "outfit cars" upon presenting the claim to this Board. Carrier contends that this constitutes a fatal variance in issues and that therefore, this claim should be dismissed.
In resolving Carrier's request to dismiss, this Board must necessarily determine whether the phrase "machine and tool cars" is a synonym of the phrase "outfit cars" as used and intended in the operation of the agreement herein.
From the plain language of the agreement, it would be unrealistic to rule that "machine and tool cars" are the same as "outfit cars" as discussed in the agreement. Although Claimant had "machine and tool cars" assigned to him; he did not have an "outfit car" assigned him.
Under Rule 16(a) this Claimant would not be entitled to per diem allowance if he had been furnished an "outfit car". By acepting the per diem, Claimant clearly admits he was not assigned an "outfit car". For this reason, Rule ~15 (a) does not apply to this Claimant and cannot be used as a basis for this claim.
Rule 19 clearly indicates that "outfit cars" are living quarters for employes. It cannot be said that Rule 19 applies in any way to "machine and tool cars".
It therefore follows ,that the phrase "machine and tool cars" is not a synonym of "outfit cars" under the clear language of the agreement. While being handled on the property, this claim was for movement of "machine and tool cars"; this Board is being asked to consider a claim based on the movement of "outfit cars". This deviation constitutes a substantial variance in the claim and therefore precludes this Board from assuming jurisdiction in .the matter.
This Board has consistently held that where a substantial variance exists between the claim handled on the property and that presented to the Board, the Board may not accept jurisdiction and resolve the dispute. See Awards: 14747-Rambo, 14298-Rambo, 14258-Lynch, 13659-Mesigh, 13235 - Dorsey, and 12354 - Yagoda.
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 does not have jurisdiction over the dispute involved herein.