STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: During the period from September 21, 1965 to and including October 7, 1965, Assistant Extra Gang Foreman Pietro Sparano performed the customary and traditional work of an extra gang foreman when he directed the activities of the operators of Spot Tamper PB-3 and Track Liner TL-5 and various other employes in performing the work of raising (surfacing) and lining track between Whitehall and Castleton, New York and, in addition thereto, made various reports relating to said work.
During the above specified period, the claim 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 is a companion claim to that made in Cases 13.65 MW and 14.65 MW covering services performed by the named claimant during the periods July 1 through 30, 1965 and August 2 through 17, 1965 respectively. The present dispute covers services performed by claimant Pietro Sparano while employed as Assistant Extra Gang Foreman of Extra Gang No. 226 during the period from September 21, 1965 to and including October 7, 1965.
During the period covered by the present claim Pietro Sparano was assigned as an Assistant Extra Gang Foreman in Extra Gang No. 226 with headquarters at Whitehall, New York. Effective September 21, 1965 claimant Sparano was assigned by his Foreman to work with certain other members of the Gang in utilizing track maintenance equipment in maintaining track structure between Whitehall, New York and Castleton, Vermont, points within the assigned limits of responsibility of Extra Gang No. 226.
During the period of the claim, the personnel assigned to Extra Gang No. 226 consisted of Extra Gang Foreman John Pellegrino, two Assistant Extra Gang Foremen, Harold Harrington and claimant Pietro Sparano, and nine 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 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