Award No. 6283
Docket No. TD-6223
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Adolph E. Wenke, Referee
PARTIES TO DISPUTE:
AMERICAN TRAIN DISPATCHERS ASSOCIATION
SOUTHERN PACIFIC COMPANY (Pacific Lines)
STATEMENT OF CLAIM:
Claim of the American Train Dispatchers
Association that:
(a) The Southern Pacific Company (hereinafter referred to as
"the Carrier") failed to comply with the terms of the existing
agreement between the parties to this dispute when it refused to
compensate Messrs. L. W. Loveday, E. E. O'Connor, W. G. Harville,
Jr., and E. E. Griffith, all of whom were at the time this dispute
arose -regularly assigned train dispatchers in the Carrier's Bakers
field, California office, for loss of time in changing positions by
direction of proper auhority, and
(b) The Carrier shall now compensate, at the then prevailing
rate of pay, Claimant Loveday for time lost on October 21 1951;
Claimants O'Connor and Harville for time lost on October 31, 1951,
and Claimant Griffith for time lost on October 30 and 31, 1951.
EMPLOYES' STATEMENT OF FACTS:
There exists an agreement
between the Carrier and the Petitioner which became effective April 1, 1947,
and was last revised as of September 1, 1949. A copy thereof is on file with
your Honorable Board and by this reference is made a part of this submission the same as though fully set out herein.
For ready reference, the rules of the above mentioned agreement, which
we believe to be material to the adjudication of this dispute, are set out
below:
ARTICLE 1. Section (a)
This agreement shall govern the hours of service and working
conditions of Train Dispatchers. This class shall include chief,
assistant chief, trick, relief and extra dispatchers, excepting only
such chief dispatchers as are actually in charge of dispatchers and
telegraphers and in actual control over the movement of trains
and related matters, and have substantially the authority of a
superintendent with respect to these and other activities. This
exception shall apply to not more than one chief dispatcher on
any division.
NOTE: In connection with which it is understood that one chief
train dispatcher (who is not assigned to perform trick
train dispatchers' service), in each train dispatching
office, is excepted from the provisions of this agreement.
[1041]
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10,54
affords a safe guide in determining what the parties themselves
had in mind when the contract was made."
Award No. 4050:
"In view of the long existence of the present practices, and
Petitioner's apparent
acquiescence therein, coupled with the Agreement and the Wage Scale attached, thereto, we are of the clear
opinion that the situation existing on the Carrier's property, illustrated by this claim is one calling for negotiation and agreement,
and that this Board does not possess the power to make a change
in the existing agreement, such as sustaining the claim would involve. We therefore hold that there has been no violation of the
Agreement, and the claim is denied."
Award No. 4086:
"(2) When the current Agreement was negotiated the practice
of receiving and of delivering telegrams by Pullman Conductors
had been followed for many years. The practice of rating telegrams
on the Super Chief had been in existence for at least seven years.
We assume the Organization, acting as the Employes' representative, knew of the existence of such practices. But whether it did or
not is immaterial. It is charged with knowledge of the working
conditions existing at the time the Agreement was executed. If it
was desired to have the practices abolished they should have been
made subjects for negotiations and agreement. When a contract
is negotiated and long existing practices are not abrogated or changed
by its terms, such practices are deemed to have been within the
contemplation of the parties and approved. Indeed, there is sound
precedent for giving them the same force and effect as if they had
been incorporated within the terms of the contract itself. See Awards
2436, 1397, 1252, 507. What has just been stated is all the more
true when-as
here-in addition
to long continued acquiescence
prior to the filing of a claim the parties have since revised the
working
agreement, then
in force and effect, without abrogating
or doing away with the practices of which they then and now
complain."
IV
CONCLUSION
The claims in this docket are based on contentions which are directly
opposed to
express provisions
of the current agreement, and carrier respect-
fully asks that they be denied.
All data herein submitted have been presented to the duly authorized
representative of the
petitioner and
are made a part of the particular
question in dispute.
(Exhibits not reproduced).
OPINION OF BOARD:
The American Train Dispatchers Association
makes this claim on behalf of Train Dispatchers L. W. Loveday, E. E.
O'Connor, W. G. Harville, Jr. and E. E. Griffith. Carrier abolished four
train dispatcher positions in its Bakersfield, California dispatching office.
As a result these Claimants lost the positions they held. This was due to
the fact that either the positions they held were abolished or
because some
one senior, who had lost his job because thereof, displaced them. Each of
these Claimants then displaced on other positions to which their seniority
entitled them. This resulted in loss of time to each Claimant as set out
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1055
in (b) of the claim. It is for this loss of time that claims are here made
under Article 7 Section (a) of the parties' Agreement. This rule provides:
"Loss of time on account of the hours of service law, or in
changing positions, within an office, by the direction of proper
authority shall be paid for at the rate of the position for which
service was performed immediately prior to such change. This does
not apply in case of transfers account employes exercising seniority."
It will be noted that this rule provides that loss of time of an employe
shall be paid for at the rate of the position for which service was performed
immediately prior to such change when such loss results from either the
hours of service law or from changing positions within in an office when done
at the direction of Carrier. However, the last provision of the rule makes
neither available when the loss of time results from the employe exercising
his seniority.
Carrier had the right to abolish the positions when need therefor no
longer existed. It did so in accordance with Article 5 Section (j), giving
the six day notice therein required. The four Claimants then had the right,
under Article 4 Section (e) and subsections 1, 2 and 3 thereof, to exercise
their displacement privileges.
We said in Award 5518:
"The difference between recognition of an employe's seniority
rights by a Carrier in the direction of the working force and the
exercise of seniority right by an employe is simply that the latter
involves an act of volition or a choice by the employe."
And as stated in Award 4849:
"When there is no work of a position to be performed, the position may be abolished. This is what happened in the present case
and claimant was required to exercise his seniority and displacement
rights."
We find that to be the situation here. Nor would the change in rest days
of the position temporarily held by Grifth, which was properly done by
Carrier pursuant to Article 3 Section (d), cause his loss of time resulting
therefrom to come within the provisions of Article 7 Section (a). See
Award 1814 of this Division.
Other reasons are presented by Carrier as to why the claims should not
be sustained. However, in view of what has already been said we do not
feel a discussion thereof either necessary or desirable.
We find the loss of time suffered by these Claimants was directly the
result of their having exercised their seniority. In consequence thereof
the claim is without 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
That Carrier did not violate the Agreement.
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AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: (Sgd.) A. Ivan Tummon
Secretary
Dated at Chicago, Illinois, this 3rd day of August, 1953.