NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

George S. Ives, Referee

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

(1) The Carrier violated the provisions of the effective Agreement when it did not allow Assistant Extra Gang Foreman Stephen Mazzarella pay at the extra gang foreman's rate for work performed during the period from May 24, 1965 to and including June 25, 1965. (System Case No. 11.65 MW)

(2) Assistant Extra Gang Foreman Stephen Mazzarella be allowed the difference in pay between what he did receive at the assistant extra gang foreman's rate and what he should have received at the extra gang foreman's rate for work performed during the period from May 24, 1965 to and including June 25, 1965.

EMPLOYES' STATEMENT OF FACTS: During the period from May 24, 1965 to and including June 25, 1965, Assistant Extra Gang Foreman Stephen Mozzarella performed the customary and traditional work of an extra gang foreman when he directed the activities of the operator of Spot Tamper PB-10 in performing the work of raising (surfacing) track at various locations on the Albany Main and between Delanson and Schenectady and, in addition thereto, made various reports relating to said work.

During the above specified period, the claimant was 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-eight (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: This claim is a companion claim to that submitted in Case No. 8.65 MW, involving the same claimant and the same gang. (Claim in Case No. 8.65 MW covered the period April 26 through May 21, 1965, whereas the present claim covers the period May 24 through June 25, 1965.)

During the period covered by this dispute, claimant Mazzarella was assigned by Extra Gang Foreman Moffre to work with certain members of the gang in utilizing a spot tamper (PB-10) in maintaining the track structure between Delanson and Schenectady, points within the assigned limits of responsibility of Extra Gang No. 214.

During the period of this claim, the personnel assigned to Extra Gang No. 214 consisted of Extra Gang Foreman Moffre, two Assistant Extra Gang Foremen, including claimant Mazzarella, and 8-10 trackmen.

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 parties waived oral hearing;

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 violated.

AWARD