STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5957) that:
EMPLOYES' STATEMENT OF FACTS: James Bellarosa owned Yard Clerk position at Warwick, N. Y. Monday through Friday with Saturday and Sunday as days of rest. Carrier had vacancies of both Yard Clerk and Trainman on Sunday, September 13, 1964. Trainman R. Paffenroth, who holds no seniority under the current Clerks' Agreement, was permitted by the Carrier to work both as Yard Clerk and as Train man on that date and compensated him for both.
Yard Clerk Bellarosa submitted request to Chief Dispatcher J. E. Flood for twelve (12) hours pay at punitive rate for not being called to work as Yard Clerk on his day of rest Sunday September 13, 1964 and Carrier permitting Trainman R. Paffenroth to perform Yard Clerk duties.
After R. Paffenroth commenced work as yard clerk, it developed that the yard drill crew was short one brakeman. No train service employes were available and as R. Paffenroth had previous train service experience, he volunteered to work both positions.
The Carrier compensated extra operator R. Paffenroth for twelve hours as a yard clerk and twelve hours as a brakeman.
Claimant J. Bellarosa submitted a claim for twelve hours under Rule 25 (b) of the current agreement which reads as follows:
The Chief Dispatcher who receives the Yard Clerk's time reports denied the claim on September 24, 1964.
On October 15, 1964, the Local Chairman appealed the Chief Dispatcher's decision to the Superintendent. This appeal was turned over to the Assistant to the President for handling and after conference with the Local Chairman on October 29, 1964, he offered a payment of four hours to the claimant for not having been called.
The Local Chairman rejected this offer on November 11, 1964, and on December 28, 1964, requested advice as to when the claimant would be paid 12 hours at time and one half for September 13, 1964.
January 8, 1965, the Assistant to the President replied that he was of the opinion that the claimant was entitled to a payment of four hours for not having been called on September 13, 1964.
The Local Chairman on January 8, 1965, contended a violation of Article V, Section 1(a) of the August 21, 1954 National Agreement by virtue of the Carrier not having rendered a decision within sixty days. January 11, 1965, the Carrier stated that it could not agree with the organizations' position.
The Local Chairman advised on January 15, 1965, that if payment was not made, the claim would be placed before the National Railroad Adjustment Board.
February 23, 1966, the organization served written notice on the Executive Secretary, Third Division, National Railroad Adjustment Board of its intention to file ex parte submission of the dispute.
OPINION OF BOARD: Clerks move that the Claim be allowed as presented because Carrier's highest officer on appeal failed to deny the Claim in writing within the time limitation prescribed in Article V of the August 21, 1954 National Agreement. Carrier answers that it submitted a proposed compromise settlement of the Claim and this it construes as tolling the time limitation. The Carrier's defense is without merit. We will grant the motion.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: