PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
THE DELAWARE AND HUDSON RAILROAD CORP.

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:






EMPLOYES' STATEMENT OF FACTS: During the period from July 1, 1965 to July 30, 1965, both dates inclusive, Assistant Extra Gang Foreman Pietro Sparano was required to perform work which is commonly recognized as work which has heretofore been performed by an extra gang foreman. This work consisted of directing the activities of various employes raising and lining track between Salem and Eagle Bridge, New York for Spot Tamper PB-3 and Track Liner TL-5 and making various reports relating to said work.


During the above specified period, the claimant Nvas not working with or under the supervision of any foreman.


For this service the claimant was compensated at the assistant extra gang foreman's rate of pay.


The issue involved in the instant case is identical to the issue involved in the dispute adjudicated by this Division in Award 12971. Although the Carrier agreed to settle twenty-eigbt (28) similar claims on the basis of the decision of this Division in Award 12971, it would not agree to a similar settlement with respect to the instant claim.


Claim was timely and properly presented and handled by the Employes at all stages of appeal up to and including the Carrier's highest appellate officer.

The Agreement in effect between the two parties to this dispute dated November 15, 1943, together with supplements, amendments and interpretations thereto is by reference made a part of this Statement of Facts.


CARRIER'S STATEMENT OF FACTS: During the period covered by this claim, claimant Pietro Sparano was assigned as an Assistant Extra Gang Foreman under the supervision of Extra Gang Foreman John Pellegrino. During the period July 1 through July 15, the gang was assigned to headquarters at Fair Haven, Vermont, and effective July 16, their headquarters were changed to Whitehall, New York. During the entire period covered by this claim, there were a total of eight men assigned to this extra gang, consisting of John Pellegrino as Extra Gang Foreman, claimant Sparano as Assistant Extra Gang Foreman, and six (6) trackmen.


During all of the period involved in this claim, claimant Sparano was assigned by Extra Gang Foreman Pellegrino to work with certain members of the gang in utilizing track machinery in maintaining track structure within the assigned limits of responsibility of the gang.


This claim is a continuation of the claim as lodged by the employes in Case No. 12.65 MW, covering the period directly following June 30, 1965, which was the final day claimed in dispute covered by Case No. 12.65 MW.


OPINION OF BOARD: The fundamental issues involved in this case are the same as those considered in our Award No. 16039, which arose out of a similar dispute between these parties under the same Agreement. Accordingly, we find Award No. 16039 controlling in this case, despite variations in dates, names and locations, which do not warrant repetitive discussion.


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






    Claim sustained.


              NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION


              ATTEST: S. H. Schulty

              Executive Secretary


Dated at Chicago, Illinois, this 12th day of January 1968.

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      CARRIER MEMBERS' DISSENT TO AWARDS 16039, 16040, 16041, 16042, 16043, 16044, 16045, 16046, 16047, 16048, 16049, 16050 and 16051, DOCKETS MW-16541, MW-16594, MW-16595, MW-16596, MW-16597, MW-16598, MW-16599, MW-16600, MW-16601, MW-16602, 1VIW-16730, MW-16731 and MW-16732.


For the same reasons that are fully and specifically enunciated in Carrier Members' dissent to Awards 15804 and 15805, Dockets MW-16108 and MW-16109, which are, by reference, incorporated herein, we dissent to these Awards.

                      R. E. Black

                      P. C. Carter

                      W. B. Jones

                      G. L. Naylor

                      G. C. White


Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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