(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The Agreement was violated when the members of Mobile Track Gang 164 were not paid the per diem allowance provided for in Agreement Rule 82 (b) during the period December 6 - 31, 1976 (System File H-1364/D-9400).

 (2) Foreman T. A. Franklin, Asst. Foremen M. R. Casey and gang members J. D. Shores, L. W. Simon, J. L. Anderson, L. D. Anderson, D. R. Sullivan, P. E. Greenfield, C. D. Montgomery, W. R. Nichols, D. E. Pepper, Noble Wilbanka, T. M. Freemali, G. C. Boler, R. H. Harris, D. 0. Owens and M. E. Crudginton each be allowed the difference between what they should have been allowed at $13.26 per day (Rule 82-b) and what they were allowed as meal and lodging expense for each day within the period extending from December 6 through 31, 1976."

 OPINION OF HOARD: The Claimants are assigned to Mobile Gang 164, which
 is customarily furnished with camp cars, and the members of the gang obtain their meals and lodgings therein. The cars are moved from point to point as the work progresses.

 The Claimants assert that during the period December 6 through December 31, 1976, the camp cars which were furnished to the gang were unfit for human occupancy, and as a result, the Employees were compelled to obtain their meals and lodgings elsewhere. Thus, the Employees insist that they are entitled to a per diem allowance pursuant to the provisions of Rule 82(b):

Just prior to the claim dates, the gang was working off of their assigned territory in a location where the outfit cars could not be spotted and hooked up to utilities and, accordingly, the gang members were paid the per diem allowance specified in Rule 82(b). Starting on December 6, the Employees were returned to their assigned territory and although the outfit cars were parked an the Fordick Track, the members continued to refrain from using the outfit cars at nights and on weekends; but instead, preferred to drive home. It was not until January 7, 1977 that the General Chairman filed
 the subject claim. _


Noting that the crew chose to remain silent during the entire month of December, 1976, the Carrier cites Rule 202, which states that the Foreman in Charge of the outfit cars must see that they are kept in a safe, clean and sanitary condition and when repairs are necessary, prompt report must be made to the immediate Supervisor. Thus, the Carrier argues that it is rather obvious that the condition of the cars was totally immaterial to the gang members, because they had elected not to stay with the cars, but rather, desired to continue to drive home and be with their families.

 The condition of the cars, as described in the record, suggests that they left much to be desired, and the Carrier seems to concede that the cars in question were not ideal for living purposes. Nonetheless, it is inconceivable to the Hoard that if the cars were uninhabitable and unfit for human living, the Employees would not have made an appropriate complaint immediately, rather than waiting for an extended period of time after the "claim period." That factor, coupled with the contractual requirement that the Foreman take certain affirmative action compels us to deny the claim.

        FINDINGS: The Third Division of the Adjustment Hoard, 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 Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT HOARD

                        By Order of Third Division


ATTEST:,:
      ~'cecutive Secretary


Dated at Chicago, Illinois, this 17th day of October 1980.