First, the Board notes that the Carrier makes several procedural arguments. For instance, it contends the claim was not timely filed and was presented to the wrong officer. With respect to the time limit argument, it is noted that the basis for this argument, as advanced by the Carrier in its Submission, was different than the time limit argument made on the property. On the property, the Carrier argued that the claim was received on February 17, 1989, beyond 60 days from the date of the claim, November 21. Thus, it seemed to accept the time limits tolled November 22. Before the Board the Carrier advanced the theory that the time limits tolled the date of the bulletin, November 8, and argued a claim sent January 11 was untimely. This is a new and different argument and one that will not and cannot be considered.
Regarding the allegation that the claim was submitted to the wrong officer, it is noted that the officer accepted and responded to the claim without taking exception to it on this basis. Thus, under these circumstances, this objection was waived.
Regarding the merits, the Organization's central contention is that the transfer in question should have been advertised along with a per diem and hourly premium in light of the following paragraph of the May 21, 1979, Letter of Agreement between the Parties:
Indeed, taken out of context, the above language seems to support the Organization's position. However, that is precisely the problem. The Organization takes the language out of context. First, as a general matter, the May 21, 1979 Letter of Agreement was negotiated in the context of the Carrier's long-range program to upgrade tracks in the Northeast corridor. The trackage involved in the instant case was subsequently acquired and not even owned by the Carrier at the time of the May 21, 1979 Letter of Agreement. Form 1 Award No. 30638
More specifically, the paragraph relied on by the organization, consistent with well-established principles of contract interpretation, must be read in the context of all the language of the Letter of Agreement. The commitment that all 16 and 32 tool production tampers be part of the Agreement was modified by specific limitations set forth in the Agreement. Consider, for instance, the sentence prior to Paragraph 1 relied on by the Organization stating, "Consistent with the foregoing, it is agreed between the parties as follows: ....' Thus, the commitment that all tampers be subject to per diem and hourly premium must be "consistent" with the "foregoing."
First, the "foregoing" lists specific machines and locations. Second, and more important to this case, is the fact that all specific assignments were to be advertised under the provisions of Rules 90A and 90B. It is noted under Rules 90A and 90B that an employee can be required to work anywhere on the Southern or Northern District without a fixed headquarters point. It was in this context the per diem was negotiated. The job in dispute was advertised with a fixed headquarters point limited to one zone, and thus, it did not involve travel. There are other restrictive provisions applicable to "contract" tamper positions, such as restricted vacation choices and a two-year minimum bid that were not part of this assignment.
In short, the May 21, 1979 contract tamper Letter of Agreement simply does not apply to a position such as the one in question which was advertised on an entirely different basis with entirely different terms and conditions than would be ordinarily attached to a contract provision.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made. Form 1 Award No. 30638