The Third Division consisted of the regular members and in addition Referee Robert E. Peterson when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The cause of action made subject of the dispute here at issue is not unlike that which was advanced on behalf of the Claimant in a prior claim which the Board heard in Third Division Award 38380 involving a contention that the Claimant was unjustly treated when a position she had just been awarded was given to a new hire. The Board denied the claim in that case. The only difference in that prior claim and the instant claim is that when the original claim was filed it was progressed under the unjust treatment provisions of Rule 44, whereas the instant claim for a compensatory penalty is progressed under Rule 45.
dispute, we concur with the interpretation placed on this Agreement provision by the Board in Third Division Award 25169, wherein it was stated as follows: Form 1 Award No. 38381
In the circumstances, having initially elected to protest the action taken by the Carrier under the unjust treatment provisions of Rule 44, it must be recognized that the Claimant did not thereafter have the right to progress a separate claim involving the same subject-matter under other Rules of the Agreement. As the Carrier submits, in seeking to do so, the Claimant and the Organization on her behalf are attempting to have the proverbial "second bite of the apple" involving the same dispute, or something which the Board is not prone to endorse. The instant claim will, therefore, be denied in a finding that the Claimant is estopped by the provisions of Rule 44 to seek Board review of the claim here presented.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.