The foregoing provision of the controlling agreement is clear and specific in providing that employes used in the place of foreman to perform foreman's work shall receive the foreman's rate while so used and we respectfully request your Honorable Board to so find.

In the handling of this dispute on the property with the carrier, the carrier, in a desperate effort to defeat the employes' claim, took the position that:

"1. Even if it was considered any merit existed for the allegation of violation of Rule 37, which it would not concede, such contention should have been promptly submitted under the provisions of Rule 38(b), and failure to comply therewith resulted in barring such claim under agreement's time limitation requirements.

2. There is no basis for the instant claim resulting from Fourth Division Awards 1435 and 1436 account letter dated April 22, 1959 directed to Executive Secretary of the Fourth Division indicated matters involved in (Docket 1426) Award 1435 and (Docket 1427) Award 1436 related to interpretation of agreement between the Carrier and Supervisors' Organization and the rights of Employes represented by System Federation No. 114 were not involved."

With respect to Item 1 above, Rule 38 reads in pertinent part:

"(b) A claim or grievance may be presented in writing by the duly authorized committee to the master mechanic (to shop superintendent in General Shops), provided said written claim or grievance is presented within sixty (60) days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the Carrier shall, within sixty (60) days from the date same is filed, notify whoever filed the claim or grievance (the employe or his representative), in writing, of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances. Any claim or grievance not presented within sixty (60) days of the occurrence on which based will be deemed to have been abandoned.

(f) A claim may be filed at any time for an alleged continuing violation of any agreement and all rights of the claimant or claimants involved thereby shall, under this rule, be fully protected by the filing of one claim or grievance based thereon as long as such alleged violation, if found to be such, continues. However, no monetary claim shall be allowed retroactively for more than sixty (60) days prior to the filing thereof. With respect to claims and grievances involving an employe held out of service in discipline cases, the original notice of request for reinstatement with pay for time lost shall be sufficient."

Paragraph (f) above provides that claim may be filed at any time for continuing violation with the restriction that monetary claim shall be retroactive for not more than 60 days prior to date filled. It is obvious from the facts adduced that the violation here complained of was continuous from June 25, 1958 to January 18, 1960, therefore, the employes' claim filed under date of February 12, 1960, with monetary claim retroactive to December 18, 1959 was timely filed and any argument to the contrary cannot be upheld.

Without in any manner wavering from the foregoing position on time limits we also call your attention to the fact that Awards 1435 and 1436, which confirm the employes' position that claimant was required to fill the place of a foreman, are dated December 21, 1959. Accordingly, the employes' claim filed February 12, 1960, was timely filed under the provisions of paragraph (b) of Rule 38 quoted above, as it was filed within 60 days of the date that it was established without question that claimant was filling the place of a Foreman.

For the reasons stated it is the position of the employes that carrier's contention set forth in Item 1 above is without merit and cannot be upheld.

With respect to Item 2 above, the instant claim is based upon Rule 37 of the parties' controlling agreement. The facts adduced reflect that claimant was required to assume all the duties formerly performed by foreman and Awards 1435 and 1436 of the Fourth Division are evidence of the fact that such duties were contractually foreman's work. Accordingly, there is no question but what claimant was required to fill the place of a foreman, and as such, is entitled to be compensated at the foreman's rate as provided in Rule 37 of the here controlling agreement.

The letter of April 22, 1959 directed to the Executive Secretary of the Fourth Division by President Michael Fox and Gerenal Chairman J. G. Black properly indicated that we were not involved in any dispute between the carrier and the American Railway Supervisors Association based upon an agreement between those two parties account our rights are based upon provisions of an agreement between the carrier and System Federation No. 114 Railway Employes' Department, A.F.L.-C.I.O.

By the same token, the instant claim cannot be construed as involving this organization in any dispute between the carrier and the Supervisors' Organization account our claim is based upon Rule 37 of the System Federation 114 agreement. Fourth Division Awards 1435 and 1436 rendered on disputes between the carrier and the Supervisors' Organization do, however, lend support to our monetary claim, as they reflect beyond question that the work claimant was required to perform by carrier was contractually supervisor's work under the Supervisors' Agreement with the Carrier.

The foregoing abundantly reflects that the contention of carrier set forth in Item 2 above cannot serve as basis for denying the employes' claim and any argument to the contrary cannot be upheld.

The employes' claim is abundantly supported by the foregoing facts and position, and we respectfully request the Honorable Members of this Division to so find.

CARRIER'S STATEMENT OF FACTS:

1. There is in evidence an agreement between the carrier and its employes in the Motive Power and Car Departments represented by System Federation No. 114, Railway Employes' Department, A. F. of L., Mechanical Section thereof, composed of the following organizations:

International Association of Machinists

International Brotherhood of Boilermakers, Iron Ship
Builders and Helpers of America

International Brotherhood of Blacksmiths, Drop
Forgers and Helpers

Sheet Metal Workers' International Association

International Brotherhood of Electrical Workers

Brotherhood Railway Carmen of America

bearing an effective date of April 16, 1942 (reprinted April 19, 1957, including revisions), (hereinafter referred to as the current agreement).

2. For some time prior to June, 1958, service requirements at Tracy, California, involving roundhouse forces had been steadily decreasing. Carrier's records indicate a decrease in excess of 300 Diesel units handled in January, 1958, as compared with the same month in 1957, and a decrease in excess of 230 Diesel units handled in May, 1958, as compared with May, 1957.

As a result of the foregoing, it was determined that certain supervisory positions in the roundhouse at Tracy were no longer required, and accordingly, effective June 25, 1958, positions of roundhouse foreman on the second and third shifts, and position of relief roundhouse foreman were abolished. Thereafter, two lead machinists' positions, one on the second and one on the third shift, covered by the current agreement, were established and devoted not to exceed one hour thirty minutes per shift to incidental duties previously performed by a foreman, and the preponderance of the tours of duty of approximately 61⁄2 hours per shift to work of their craft in accordance with Rule 34 of the current agreement.

3. During the period of the within claim, specifically December 17, 1959 to January 18, 1960, A. E. Cooper (hereinafter referred to as the claimant) was assigned as lead machinist, hours of assignment 3:30 P. M. to 11:30 P. M., with rest days on Tuesday and Wednesday. During this period there were only three employes over which the claimant had direction: a machinist, electrician, and a fuel oil attendant. Work to be performed on the second shift was lined up by the day shift (first shift) roundhouse foreman, who also instructed the lead machinist of work to be performed, if any, on engines left for the second shift. In most instances, equipment was approved for service by the day shift for use on following shifts. The remaining duties required to be performed on engines on the second shift were usually of a routine and minor nature of work which could be performed on the second shift by the limited force retained and any other work which they could not complete was left for following shifts or sent to other terminals for necessary attention.

4. Claim has been handled on the property on behalf of claimant ". . . to be additionally compensated the difference between compensation already received as Lead Workman and the Foreman's rate of pay for each date, December 17, 1959 to January 18, 1960, inclusive . . .".

Carrier here submits that the claim for dates of December 17, 1959 and January 15 and 16, 1960, cannot be considered or be valid under any circumstances, since the claimant performed no service on those dates, nor on his rest days, specifically December 22, 23, 29 and 30, 1959 and January 5, 6, 11 and 12, 1960.

POSITION OF CARRIER: At the outset, carrier directs the Division's attention to the following procedural defect which is sufficient to bar the

claim from further consideration: Under the provisions of paragraph (b) of Rule 38 of the current agreement, which reads as follows:

"(b) A claim or grievance may be presented in writing by the duly authorized committee to the master mechanic (to shop superintendent in General Shops), provided said written claim or grievance is presented within sixty (60) days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the Carrier shall within sixty (60) days from the date same is filed, notify whoever filed the claim or grievance (the employe or his representative), in writing, of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances. Any claim or grievance not presented within sixty (60) days of the occurrence on which based will be deemed to have been abandoned."

any claim or grievance must be submitted to the master mechanic within 60 days of the occurrence on which it is based.

In the instant case the action of the carrier in abolishing the roundhouse foreman positions involved on June 25, 1958, was the incident forming the basis for the claim presented and as such claim was not presented until February 12, 1960, well beyond the 60-day time limit set forth in the above-quoted paragraph of Rule 38, it is clear that said claim must be deemed abandoned.

In support of this position carrier refers the Division to its Award 3250, the parties to the dispute being carrier and petitioner as recognized in this docket, which denied claims per last paragraph of "Findings," reading:

"We find that the grievances occurred intermittently and therefore continuing, as claimed, but the last one set out and relied upon is May 3, 1956, more than 60 days prior to January 27, 1957, the date when the claims were presented to the carrier."

Petitioner was well aware of the recognized application of Rule 34 of the current controlling agreement with respect to the use of lead workmen as operated for many years at various locations on this property and fully accepted such conditions and positions of lead workmen. Accordingly, the position of the lead workman involved at Tracy was likewise accepted from June 25, 1958, until the initial submission of the instant claim on February 12, 1960, retroactive to December 17, 1959, in lieu of protesting promptly if any question existed thereon, which obviously did not occur until issuance of Fourth Division Awards Nos. 1435 and 1436, sustaining claim presented to that Division by the Supervisors' Association under the application and interpretation of agreement covering such employes on this property.

The failure by petitioner to make any protest during period in excess of one and one-half years in which position of claimant was fully accepted and recognized as proper under controlling agreement provisions applicable to claimant was further not in conformity with the intent of Rule 38(b) previously quoted. As was stated in Award No. 2287 of this Division:

"Such delay is sufficient to defeat a claim, particularly a running claim such as we have in the present case. The record indicates a complete want of diligence in the handling of the claim. The time em

ployed in progressing the claim exceeds that which under any circumstances can be deemed reasonable when the carrier has not been a party to or waived the delay on the property. In such cases the carrier may properly assume that the declination of the claim has been accepted. We deny the claim because of want of reasonable diligence in its prosecution."

A similar principle was also stated in Fourth Division Award No. 1261 as follows:

"The employes also maintain that the thirty day limitation rule cannot bar this claim inasmuch as it is a continuing one. To give effect to this contention would stultify the time limit provisions of the agreement, for to carry this theory to its possible conclusion, a continuing claim would, although dormant, retain life for years on end. We cannot believe that such was in the minds of the parties when Rules 12 and 13 were agreed upon. Indeed, the adoption of such an interpretation would perforce apply to Rule 11 as well, and surely that was not the intent of the parties. (See Award 943.) It is a well established principle that statutes of limitation must be strictly construed. Failure to comply with the procedural requirements of the time limit rules is fatal here and the claim will be dismissed."

The carrier, therefore, respectfully submits that it is the duty of the Division to dismiss the claim and terminate all proceedings in this docket.

Subject to, and without in any manner whatsoever waiving or impairing the above motion to dismiss the claim in its entirety, carrier will hereinafter discuss its position in this dispute and will show that the claim is without merit or basis on any ground.

As carrier set forth in its statement of facts, service requirements at Tracy roundhouse had progressively decreased to the point where it was determined that force re-arrangement was necessary. Among other changes, it was determined that positions of relief roundhouse foreman on the second and third shifts were no longer necessary since there was not sufficient supervision required of the positions to justify their existence. Accordingly, on June 25, 1958, the positions were abolished. Thereafter, on second shift, a lead machinist, devoted not to exceed one hour thirty minutes of his shift to performing incidental duties previously performed by a foreman and the remaining time of his shift (approximately 61⁄2 hours) performing work of his craft in accordance with Paragraph (b) of Rule 34 of the current agreement, reading:

"LEAD WORKMEN

Rule 34.

(a) At shops-In small gangs a working mechanic may be assigned to work with, take the lead and direct the work of other members of a gang in his craft and on his class of work. For such service he will be allowed the differential of six (6) cents per hour above the highest rate, paid any employe he so directs, but not less than six (6) cents per hour above the highest rate applicable to the work performed by the gang or himself.

(b) At roundhouses and train yards - For small groups of employes a leading working mechanic may be assigned to work with, take