NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number SG-20078
Joseph A. Sickles, Referee
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(George P. Baker, Richard C. Bond, Jervis Langdon, Jr.,
( and Willard Wirtz, Trustees of the Property of
( Penn Central Transportation Company, Debtor
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of
Railroad Signalmen on the former New York Central Rail
road Company (Lines West of Buffalo):
On behalf of Assistant Signal Maintainer M. J. Richison for a
pay differential between that of Assistant Signal Maintainer and Signal
Maintainer, for both pro rata and any punitive time involved, for dates of
May 11, 12, 13, and 14, 1971, account Claimant working the position of Signal Maintainer (position 3
OPINION OF BOARD: The incumbent of a Signal Maintainer position departed
that position on or before May 3, 1971. Claimant was
required to fill the position.
During the processing of the claim on the property, the Claimant
cited Rule 43 (b) which states that:
"Vacancies in continuing positions will be bulletined
within seven days following date such vacancies occur..."
Accordingly, Claimant insists that Carrier was required to advertise the position within
pay between his rate and the Signal Maintainer position for May 11, 12, 13
and 14. Carrier commenced paying the higher rate on May 17, 1971.
Carrier states that the prior incumbent was temporarily assigned
to another position on May 3, 1971, but was not permanently assigned to
that position until May 11, 1971. Thus, it urges, no time limit requirement
to bulletin the Signal Maintainer position could have existed until after
that time.
As one of its defenses to the claim, Carrier argues that there is
a substantial variance between the claim handled on the property and the
one presented to this Board.
The original claim submitted to Carrier, on the property, stated:
"On May 3, 1971, Mr. M. E. Campbell, then Signal Mntr.
on Gang 3-B Jackson, Michigan, was transferred to the
position of Relay Inspector, Jackson, Michigan.
Award Number 20472 Page 2
Docket Number SG-20078
"This action by the Carrier caused a vacancy in a permanent position, namely Mr. Campbell's orig
This vacancy in a continuing position should have been
bulletined within seven (7) days, which it was not.
This violation of Rule 43 (b) deprived Mr. M. J. Richison,
the oldest Asst. Sig. Mntr. on the Michigan Division, the
opportunity of advancing his rate.
Thereby, consider this as an initial time claim, by the
undersigned as Acting Local Chairman, in Mr. Richison's
behalf, that:
(a) Carrier violated the current working
Agreement, particularly Rule 43 (b), when
it did not bulletin the vacancy of Signal
Maintainer, Section 3-B, Jackson, Michigan,
on or before May 10, 1971.
(b) Carrier should now be required to compensate Mr. M. J. Richison the difference in
rate of pay between Asst. Sig. Mntr. and Signal Maintainer for all hours worked, both pro
rata, and time and one-half for the following
dates: May 11, 12, 13, 14, 1971
...."
(underscoring supplied)
In subsequent handling on the property, Claimant continued to
base his claim on the failure to bulletin under Rule 43 (b).
However, the claim submitted to this Board makes no reference to
Rule 43 (b) and seeks pay differential:
"...account claimant work the position..." (under
scoring supplied)
Thus, a reading of the claims suggests that two different theories
of violation are presented. While, certainly, on the property, there was
reference to Claimant working the position in question (and allegedly being
entitled to a pay differential commencing May 3, 1971) nonetheless, the only
rule cited was 43 (b), and the alleged contractual violation was that failure
to follow that rule deprived Claimant of the opportunity of advancing his rate.
In the Submission to this Board, Claimant seeks damages because
he actually worked the position.
Moreover, in the Ex Parts Submission, Claimant cites Rule 42:
Award Number 20472 Page 3
Docket Number SG-20078
i
"When an employe is required to fill temporarily the
place of another employe receiving a higher rate of
pay, he shall receive the higher rate therefor, but if
required to fill temporarily the place of another employe
receiving a lower rate, his rate will not be changed."
and it is urged that "Carrier should not be permitted to require an employe to fill the place of
pay, and not pay the employe filling such higher rated position the
higher rate."
This Board can agree that it would appear that Claimant was
entitled to receive the higher rate during the period in question under
Rule 42. But, the record clearly shows that Claimant did not urge a violation of that rule on the pr
such circumstances a claim may not be sustained.
We feel that the claim submitted to this Board does not encompass
the claim as handled on the property. Under the Awards of this Board, the
claim must be dismissed. See, among others, Award 19564, 20147 and 20132.
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;
i
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 claim be dismissed.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
' By Order of Third Division
ATTEST: ~ ~~
xecutive SeEretary
;,~ Dated at Chicago, Illinois this 25th day of October 1974.