NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Pacific Company, Pacific Lines, that Telegrapher D. E. Hall, Tucson Division, be compensated under Rule 10 of the Telegraphers' Agreement and that certain Memorandum of Understanding dated San Francisco, Calif., January 3, 1938, account services performed at Hyder, Tucson Division, September 9th and 10th, 1939.
EMPLOYES' STATEMENT OF FACTS: Claimant, Telegrapher D. E. Hall, Tucson Division, was ordered to and did perform service at Hyder, Tucson Division, September 9th and 10th, 1939, this service being of a temporary nature made necessary because of emergency conditions consisting of floods, washouts, damaged tracks and roadbeds, causing excessive and unusual delays to traffic, complete stoppage of traffic for intermittent periods and detouring of traffic because of the emergency conditions. The emergency conditions extended over a wide area in California and Arizona.
"As the Bulletin went to press, Operating Department officials announced that regular service had been restored on the morning of September 7 over the Sunset Route, following a 30-hour tie-up of trains due to severe washouts between Araz Junction and Indio on Los Angeles Division.
"Heavy rains which began falling at 3:00 A. M. September 4 flooded four miles of track between Thermal and Mecca, but quick action by maintenance forces resulted in clearing the line that same evening. A second storm the morning of the 5th, however, resulted in serious washouts at a number of points between Araz Jet. and Indio and between Niland and Brawley on the Imperial Valley line.
"West bound trains were routed from Yuma to El Centro, where passengers were transferred to buses for completion of their journey to Los Angeles. Passengers were transferred from eastbound trains at Colton and Indio and taken to El Centro by bus, where they continued their trip by train. Passengers on three eastbound trains which had been able to proceed as far as Niland were held there as transfer to buses was impossible because of high water. During their enforced layover every precaution was taken to provide them every comfort.
Applicable rates of pay for services performed by telegraphers assigned to the Hyder station are established in conformity with Rule 2 (b) of the current agreement. The first telegrapher position at Hyder is not operated continuously but is operated temporarily during certain periods when, because of increased traffic, it is necessary to assign a first telegrapher thereto. At no time in the past as the petitioner contended that the carrier did not have the right to temporarily assign a telegrapher or telgeraphers at Hyder and to compensate them at the rate provided for in the agreement.
The petitioner must admit that the use of Extra Telegrapher Hall at Hyder, on September 9 and 10, 1939 was solely for the purpose of assisting in the movement of increased traffic. How the petitioner will distinguish between the operation of the Hyder station in the past when a first telegrapher was assigned thereto to assist in the handling of increased traffic, and the operation of the station on September 9 and 10, 1939, is beyond the comprehension of the carrier.
Furthermore, is is an established principle that a derailment at, or in the immediate vicinity of a regularly established telegraph office and because of such an emergency it is necessary to assign an additional telegrapher position to the regularly established office, does not bring Rule 10 into operation, for the reason that such circumstances do not change the status of the office from a regularly established office to an emergency office to bring it within the purview of Rule 10.
Hyder was, prior to September 9, 1939, operated with a telegrapher assigned thereto from 7:00 P. M. to 4:00 A. M., with one-hour meal period (see paragraph 2, carrier's statement of facts).
The factual situation in the instant case and in Awards 1493 and 1494 are identical with the exception of the stations, claimants and periods involved. In Awards 1493 and 1494 the claims were denied.
Subsequent to Awards 1493 and 1494, the Board considered two cases, namely Awards 1520 and 1522, and, like Awards 1493 and 1494, denied the claims, predicating its decision on the principles and interpretation of Rule 10 established by Awards 1493 and 1494.
The carrier submits that the interpretation of Rule 10 established by the Board in Awards 1493, 1494, 1520 and 1522 is based on the clear and unambiguous language of the rule; it is a proper interpretation and should be applied in the instant case and therefore it is incumbent upon the Board to deny the alleged claim in the instant case.
OPINION OF BOARD: This claim is governed by Docket TE-2081, Award No. 2105.
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 employe involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934; 2111-11 154
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
Dissent
to
Award 2105, Docket TE-2081 Award 2111, Docket TE-2098To the dissents in Awards 1322, 1323, 1979, 1980, 1981, and 1982, we add that to apply Rule 10, Emergency Service, to every office established, to increases of force and to relief service performed in existing offices, etc., simply because at some prior time there had been a derailment or washout on some part of the Carrier's property, either near or remote, represents misunderstanding of the facts and intent and meaning of the agreement.
Rule 10 does apply to "Emergency Service" but neither by its language or prior application has it been nor should it be applied to any service other than "* * * at derailments, washouts, or similar emergency offices * * *."
The supplemental agreement of January 3 1938 was an agreed upon interpretation of paragraph (c) of Rule 10. It has no application or bearing on the question in dispute, i. e., what constitutes emergency office service, unless and until it had been determined that Rule 10 was applicable.
This supplemental agreement and prior settlements do not, in our opinion, determine that question nor confirm the Referee's construction of Rule 10.
In view of the facts presented, the provisions of Rule 10, as well as contrary awards of this Division dealing with Emergency Service rules, both with and without a referee, we hold Rule 10 was improperly applid and that the awards are erroneous.