STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
EMPLOYES' STATEMENT OF FACTS: With respect to previous and existing agreements between the parties to this dispute and which have a bearing on the issues set forth herein; a Schedule Agreement was consummated effective October 16, 1936. That Agreement was revised effective April 1, 1945. The latter Agreement was subsequently partially revised effective September 1, 1949. The Agreement, effective April 1, 1945, and the revision of September 1, 1949, constitute the current Schedule Agreement between the parties; both of them are on file with your Honorable Board and are made a part of this submission by this reference the same as though they were fully set out herein.
The Agreement effective October 16, 1936, among other rules, contained the following:
OPINION OF BOARD: This docket involves a claim by Dispatcher J. E. Taylor for certain monetary payments which the Association contends is due him because Respondent Carrier failed to compensate him in accordance with the terms of the Agreement when Claimant was assigned to the position of Chief Train Dispatcher between May 26 and August 12, 1960.
The decision on this claim turns upon an interpretation of the Scope Rule (Rule 1) of the Agreement and the "Mitchell Settlement" of November 20, 1942. The Petitioner contends that under the terms of these two instruments the Chief Dispatcher position here in question is subject to all the terms set forth in the Agreement. The Respondent contends that the Chief Dispatcher position is an "excepted" position from the Scope Rule and the "Mitchell Settlement" save with respect to Rule 6 (d) and S (c) which it has been agreed would apply.
If the Petitioner's position with respect to the Chief Dispatcher position being within the scope of the Agreement is upheld, then these claims should be paid. If on the other hand Respondent's position that the position is "excepted" save as noted above, then there is no basis for requiring the payment of the claims.
In addition to the Scope Rule quoted immediately above, reference is made to the "Mitchell Settlement" of November 20, 1942. The Association contends that since in arriving at that Settlement negotiations were carried on concering the re-establishment of the Chief Dispatcher position, and inasmuch as it was established and specified that "the Chief Dispather's position when re-established shall be bulletined for the seniority choice of trick dispatchers," the Carrier thereby agreed to bring the position under the full coverage of the Agreement.
We cannot agree with this interpretation of the Settlement. There is no language in the Settlement which can be construed to bind the Carrier to such conclusion. Had full coverage been intended it would have been simple enough to have so stated. Instead limiting language is used which would seem to indicate that general coverage was not contemplated.
With respect to the Scope Rule, there is no question but what the Chief Dispatcher position is "excepted" provided certain duties and responsibilities stated in the Rule are assumed and performed by such Dispatcher. The question here is whether Claimant during the period in question assumed and performed duties such as to put his position in the "excepted" category under the Rule. The record does not answer this question with complete satisfaction, although there is substatntial'evidence to the effect that the position as held by Claimant entitled it to an "excepted" classification within the reasonable contemplation of the Rule. This is supported by certain documents submitted by the Carrier relative to the duties actually performed by Claimants and other occupants of the same position.
In addition, the record contains two citations which indicate that Association officials did not regard this particular Chief Dispatcher position as 5686-12 1076
under the full coverage of the Agreement a few months prior to the time for which the instant claim was filed.
First, in a letter by the Association's Vice President, dated September 2 1949 the following sentence appears, "Except for Item 4 of the letter otI the 30th, (Item 4 concerned adjustment in rate of pay for Chief Dispatcher), which is entirely a Management question (emphasis supplied) Thus it ap. pears that the representative of the Association conceded that the position to question was covered by the Agreement only in certain limited respects.
Second, the record shows that Claimant and other occupants of the Chief Dispacher position have exercised rights under Rule 9 of the Agreement which is an arrangement whereby a Dispatcher who accepts a super visory or official position may return to the ranks of the Dispatchers upon relinquishing such official position.
In view of the circumstances involved and the applicable rules of the Agreement we must conclude that this claim lacks merit.
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