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 H. J. Short be compensated under Rule 10 of the Telegraphers' Agreement and that certain Memorandum of Understanding dated January 3, 1938, for services performed at Gila, Arizona, Tucson Division, September 14, 1939.
EMPLOYES' STATEMENT OF FACTS: Claimant, Telegrapher Short, Tucson Division, was ordered to and did perform service at Gila, Tucson Division, September 14, 1939, this service being of a temporary nature made necessary because of emergency conditions consisting of floods, washouts, damaged tracks and road beds, causing excessive and unusual delays to traffic, complete stoppage of traffic for intermittent periods and detouring of traffic because of the emergency conditions. The creation of the position occupied by Telegrapher Short was admittedly by the Carrier caused by washouts and detoured trains. (EXHIBIT "C".) 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.
"Westbound 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 east bound 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.
current agreement (see paragraph 1, carrier's statement of facts). At no time in the past has the petitioner contended that the carrier did not have the right to temporarily assign additional telegrapher or telegraphers at Gila and to compensate the telegrapher or telegraphers in accordance with the rate in the current agreement.
The petitioner must admit that the use of Extra Telegrapher Short at Gila on September 14, 1939, was solely for the purpose of assisting in the handling of increased traffic. How the petitioner will distinguish between the operation of the Gila station in the past when three telegraphers were employed during the 24-hour period and when an additional telegrapher was temporarily assigned to assist in the handling of increased traffic on September 14, 1939, is beyond the comprehension of the carrier.
Furthermore, it is an established principle that a derailment, washout, or similar emergency, at or in the immediate vicinity of a regularly established telegraph office, and because of such 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. In Award 1493 the Board, speaking through Referee Shaw, stated:
"The present Referee is of the opinion that Rule 10 is and is intended to be easily and simply understood, and that it applies only to Emergency Offices. The fact that a regular existing office happens to be conveniently close to the scene of disaster does not change its normal character of being a regular office as distinguished from an Emergency Office."
Gila was, prior to September 10, 1939, a regularly established continuously operated office with three telegraphers employed, working in consecutive and continuous 8-hour shifts during the 24 hours of each day (see paragraph 2, carrier's statement of facts).
The Board's attention is directed to Awards 1493, 1494, 1520, and 1522. The carrier submits that the principles and interpretations established by Awards 1493, 1494, 1520, and 1522 are proper arid based on the clear and unambiguous language of the rule and by applying those principles and interpretations to the instant case,, the conclusion is inescapable that to sustain the interpretation requested by the petitioner in the insant case would violate the specific language of Rule 10. The factual situations in the instant case and hi Aw-ardS 1520 and 1522 are identical with the exception of the stations, claimants and periods involved. In Award 1520 and 1522 the claims were denied.
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 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 emplaye involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934; 2116-11 231
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 in creases 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 applied and that the awards are erroneous.