OPINION OP BOARD: The factual basis for claims asserted in this docket began on June 19, 1967, when Carrier's Chief Dispatcher served Claimant with notice that the third shift position at Ellis would be abolished effective June 26, 1967, at 12:01 A. M. The notice also advised that the position would be re-established on July 10, 1967, and contained the following: "Novick advise if desire to return to abolished position."
It does not appear that Claimant Novick responded to the question; in fact, it is asserted by Employes that Mr. Novick did not desire to return to third shift Ellis. In any event, it is clear that Mr. Novick performed service as an extra telegrapher after the position was abolished. On July 5, 1967, Chief Dispatcher instructed Mr. Novick to perform one day's service at Pawnee on July 7th, "then return to 3rd trick Ellis 11:59 P. M., Monday, July 10." On the same date Mr. Novick replied that he would obey the instructions. The Chief Dispatcher issued additional instructions on July 8, 1967 to Mr. Novick directing that he work third shift at Shops Tower on July 8 and 9-"then report "o xegulcr ;job 3rd trick Ellis Monday-July 10, 1967."
Mr. Novick performed the service as directed. He was allowed compensation for deadheading for the trips to Pawnee and Shops Tower; he claimed deadhead pay from Shops Tower to Ellis on July 10, 1967. Assistant Superintendent Adams declined to allow the claimed compensation on August 15, 1967, contending that Mr. Novick's return to Ellis on the 10th day of July was in the exercise of seniority; that "deadhead pay" was not due.
The parties are not in disagreement as to the interpretation of the provisions of Article 24, Deadheading. They are in disagreement on the fact question as to whether Mr. Novick requested right to return to the reestablished position as provided in Article 21 (B) (4). After conference, Superintendent Arnish disallowed the claim for the reason: "Claim (5) involves a temporary force reduction after which Mr. Novick advised the Chief Dispatcher that he would protect Pawnee 7:00 A. M., July 7th for one day and then return to the 3rd trick Ellis Monday, July 10th."
It is clear that llr. Arnish was referring to the telegram sent by Mr. Novick to Chief Dispatcher on July 5, 1967. The telegram read: "Will protect Pawnee 7 A. M. July 7 for one day only and then return to 3rd trick Ellis Monday, July 10, 11:59 P. M." The telegram was sent at 11:05 P. M., in response to Chief Dispatcher's telegram, same date, sent at 11:13 A. M.
As heretofore stated, Mr. Novick received notice on June 19, 1967, that he could return to third shift at Ellis upon its re-establishment as of July 10. The rule [Article 21(B)(4)] requires that he "must advise the Chief Dispatcher of his intention to do so within five (5) days from the date upon which he received notice." The record does not affirmatively show that he did so.
Even though we should construe the July 5th wire response as indicating a desire of Mr. Novick to return Ellis, it would not be effective because not made within five days of the date he was advised that he could do so.
Therefore, the Carrier has not sustained its burden of showing that Mr. Novick did, in fact, exercise seniority rights in returning to Ellis on the 10th. He was still an extra employe, and entitled to the claimed deadhead pay. Claims 3 and 4 should be sustained.
The claims set forth in paragraphs 1 and 2 of the Statement of Claim were first asserted by General Chairman in letter dated September 20, 1967, directed to Superintendent Arnish. The claim was disallowed by Superintendent Arnish for the reason: "A claim for Mr. Novick starting July 17th has not been handled in accordance with the time limit provisions."
We think the position of the Carrier is well taken. The claim asserted in the September 20, 1967 letter to Superintendent Arnish was not submitted to the Assistant Superintendent, nor was it filed within 60 days from July 10, 1967. Paragraphs 1 and 2 should be dismissed as barred.
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
Claims 1 and 2 should be dismissed for failure to comply with time limit rule provisions. In Claims 3 and 4 the Agreement was violated.