NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
THE CHICAGO, ROCK ISLAND AND PACIFIC
THE CHICAGO, ROCK ISLAND & GULF RYS.
STATEMENT OF CLAIM: "Claim of the General Committee of the Order of Railroad Telegraphers that,
1. The Carrier violated the provisions of the Mediation Agreement, A-560, of February 16, 1938, as agreed it shall be applied, when the Carrier required or permitted the train dispatcher at Dalhart, Texas, to transmit to, and required or permitted the conductor of Work Extra 1735 to take a train order at King, Texas, by telephone at 4:29 P. M. on April 28, 1939:
EMPLOYES' STATEMENT OF FACTS: "It is the contention of the General Committee that the Chicago, Rock Island and Pacific-Chicago, Rock Island and Gulf Railway Companies and The Order of Railroad Telegraphers are parties to an agreement dated January 1, 1928, covering wages and working conditions of employes occupying position enumerated in the wage scale thereof, and, the Chicago, Rock Island and Pacific-Chicago, Rock Island and Gulf Railway Companies, on the one hand, the Brotherhood of Locomotive Engineers, The Brotherhood of Locomotive Firemen and Enginemen, The Order of Railroad Conductors, the Brotherhood of Railroad Trainmen, the American Train Dispatchers' Association and the Order of Railroad Telegraphers, on the other hand, have an agreement covering the taking of train orders and blocking of trains by train service employes and the transmission of train orders to and the blocking of trains with train service employes by train dispatchers, which is dated February 16, 1939, and effective April 1, 1939, copies of which have been supplied to the Board.
"It is further the contention of the Committee that, on April 28, 1939, Conductor Moore in charge of Work Extra 1735, used the dispatchers' emergency telephone at King, Texas, a point where no telegrapher is located, to take train order No. 55 from the train dispatcher at Dalhart, Texas which read:
and was completed at 4:29 P. M., by dispatcher H. B. T., being handled contrary to the telegraphers' agreements."
who is employed at that point. This principle is applied even though a train order is taken by a conductor over the telephone at the signal at the end of the siding at that station, which is usually several hundred feet from the station itself. No contention has ever been raised that the handling of a train order at the signal rather than at the station creates a new telegraph office at the signal or switch protecting the sidings at that station. Payment of a call in such cases has always been made to the telegrapher employed at the station.
"In the instant case there was no telegraph or telephone office in existence and no operator employed or available at King, Texas, therefore, there was no violation of the agreement, and, in addition, the claim was not filed in accordance with Article 6 (h) of the telegraphers' agreement of January 1, 1928. The claim should be denied."
OPINION OF BOARD: The principles involved in this claim in respect to the application of Mediation Agreement A-560 and the governing agreement of Rules and Rates of Pay are identical with the principles in Docket No. TE-1230, Award 1220. For the same reason assigned in that case, the Board holds that the Agreement was violated at the place and time stated in this claim.
But as a secondary defense the Carrier contends that the claim should be denied under Article 6 (h) which is as follows:
The date of the violation of the agreement was April 28, 1939 at King, Texas, and the complaint was made by the Petitioner on June 5, 1939. Thus more than thirty days elapsed between the date of the violation of the Agreement and date the claim was made. This Division has repeatedly held that claims not presented within the time stated in similar rules will be barred unless the violation of the rules is a continuing one. The Board holds that there is nothing in the record to show a continuing violation of the Agreement. Occasional violations of an Agreement are quite different from continuing violations; therefore, the claim for reparation should be denied under Article 6 (h) of the Agreement.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
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 facts of record disclose a violation of the Agreement, but that the recovery of reparation is barred by Article 6 (h) of the Agreement.