NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the New York Central Railroad (West of Buffalo), that:
EMPLOYES' STATEMENT OF FACTS: Elmore, Ohio, is a one-man agency located on the Norwalk Branch of the Toledo Division. The employe working thereat holds seniority on Seniority District No. 4 as shown in the Wage Scale of the current agreement between the parties.
Mr. W. B. Hesselbart is the Agent-Telegrapher in charge of the one-man station at Elmore. He works regularly assigned hours 9:00 A. M. to 6:00 P. M., with one hour for lunch. The station is closed Saturday and Sunday and Agent-Telegrapher Hesselbart is subject to "call" service at this one-man agency to perform any work arising at a time outside his regularly assigned tour of duty.
Commencing November 11. 1949. and on subsequent dates, at a time of the day before Claimant is scheduled to report for work, the Carrier requires track motor car operators at Elmore to use the railroad telephone at that point to contact other open stations at distant points on either side of Elmore on this branch line, such as Lindsey, five miles to the east, or Genoa, five miles to the west. The telegraph service employes at these two distant stations report for work at 7:30 A. M. and 7:45 A. M., respectively.
on Seniority District No. 4. The Agent-Telegrapher in charge of the station works assigned hours from 9:00 A. M. to 6:00 P. M. with one hour for lunch. The station is closed Saturday and Sunday, but the agent is subject to "call" service to perform any work arising at a time outside his regularly assigned duty.
Commencing on November 11, 1949 and on subsequent dates and at a time of day before the agent is scheduled to report for work, the Carrier requires a track motor car operator at Elmore to use the railroad telephone at that point to contact other open stations. There is a telephone located in a box outside of Elmore station. It is a Carrier party telephone circuit. The section foreman uses this telephone when the agent is nol on duty for permission to enter the block, if there are no other trains moving between Elmore and the station to which he will travel with the track motor car. The section foreman copies a train order, a copy of which reads as follows:
It is an admitted fact that the use of the telephone would be performed by the agent if a request was made while he was on duty. 6461-42 782
Decision in this case depends upon an interpretation of Article 22, which reads as follows:
It is the position of the Carrier that neither the Scope Rule nor any other rule of the Agreement refers directly or indirectly to handling of information shown by motor car operators or by telegraph operators on Motor Car Permit Form M which pertains only to the time a section motor car may be moved on a track and moved to a certain location where the motor car operator again removes the motor car from the rails; that Article 22 deals only with train orders; that there is no blocking of trains involved as is performed by a "block operator"; and that the Motor Car Permit Form M is not required by any Telegraphers' Agreement Rule. It is considered that every use of the telephone was not intended as telegraphers' work. In Award 1983 it was held that employes whose duties require the transmitting or receiving of messages orders, or reports of record by telephone in lieu of telegraph constitutes the telephone work reserved exclusively to telegraphers.
In Award 4516 it was held that the sending and receiving of train line-ups is work reserved to telegraphers under the Scope Rule of their Agreement. In that Award it was said 'The reservation of work by telephone includes only that which telegraphers formerly performed by telegraph and nothing more, It follows that the use of the telephone in the case at bar by the track motor car operator is contrary to the Agreement.
FINDINGS: The Third Division of the Adjustment Board, 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 Carrier violated the Agreement and that because of such violation the employe is entitled to reparation for services of which he was unjustly deprived.
The Award herein is in error for the primary reason that it is based upon the bare assertion that, in copying Motor Car Permit Form M, "The section foreman copies a train order."
Such an assertion is inconsistent with the following rules governing the handling of train orders, which were quoted from the Rules for the Government of the Operating Department, New York Central System:
The Carrier stated as follows in showing that the Form M Permit is in no degree comparable with train orders as contemplated by Article 22 or the Operating Rules, supra:
The Carrier also stated that section motor cars are not trains and their movement was never governed by train orders before or since Motor Car Permit Form M was adopted.
It is noteworthy that the majority herein have assigned no reason for holding that Form M is a "train order". A holding with no assigned reason therefor cannot be considered as a binding precedent (Award 4137). Manifestly, there is no analogy between the handling of a train order as described in the Operating Rules and the handling of the Form M as described by the Carrier.
The Award herein also is in error for the reason that it cites Awards 1983 and 4516 as precedents, which Awards involve other Carriers and different rules, practices and factual situations, and Ignores Awards on other Districts of the same Carrier which are strictly In point with the issue involved in the instant case, one of which (Award 4967) prescribed a 6461-44 7$¢
Interpretation No. 2 To Award No. 6461
Docket No. TE-6180
Mbetween the parties as to its meaning, as provided for in Section 3, "at (m) of the Railway Labor Act, approved June 21, 1934, the following interpretation Is made:
In the original Award we held that decision was based upon Article 22"Handling Train Orders":
Based upon the above rule we held that the use of the telephone by the track motor car operator was in violation of the Agreement and the employe was entitled to reparation for services of which he was unjustly deprived.
In an interpretation of the above Award, dated June 28, 1955, we held that Article 22-Handling Train Orders"-is a general rule which controls the employe's right to compensation. Article 4 (b) of the Agreement controls as to the amount of compensation an employe is entitled to when such services are rendered in advance of his regular working hours.
We now hold that if the violation occurred within two hours of the time the operator was supposed to go on duty, the claim should be paid under the overtime Rule and if the violation occurred more than two hours before the employe was regularly assigned to go on duty, he should be paid under the Call Rule. The above interpretation is what was intended when the original Award was made.
Referee Edward M. Sharpe, who sat with the Division as a member when Award No. 6461 was adopted, also participated with the Division in making this interpretation.
Interpretation No. 1 to Award No. 6461
Docket No. TE-6180
Upon application of the representatives of the employes involved in the above Award, that this Division interpret the same in the light of the dispute between the parties as to its meaning, as provided for in Section 3, First (m) of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
The request of the Organization herein for an interpretation of the above Award wherein it was held "That the Carrier violatthe Agreement and that because of such violation the employe is entitled to reparation for services of which he was unjustly deprived";
The above quote requires an interpretation of Article 4 (b) of the Agreement effective November 1, 1950 which reads as follows:
It is the position of the Carrier that an employe called less than two hours prior to his regular starting time shall be paid for on the actual minute basis.
It is the position of the Organization that an employe called prior to his regular starting time is entitled to two hours' pay at time and one-half as is provided for under Article 5 of the above Agreement.
Article 22-Handling Train Orders-is a general rule which controls the employe's right to compensation. Article 4 (b) of the Agreement controls as to the amount of compensation an employe is entitled to when such services are rendered in advance of his regular working hours. The amount of the award in the case at bar is controlled by Article 4 (b) heretofore quoted.
Referee Edward M. Sharpe, who sat with the Division as a member when Award No. 6461 was adopted, also participated with the Division in making this interpretation.
Interpretation No. 2 To Award No. 6461
Docket No. TE-6180
NAME OF CARRIER: New York Central Railroad Company (Line West).
Upon application of the representatives of the employes involved in the above Award, that this Division interpret the same in the light of the dispute between the parties as to its meaning, as provided for in Section 3 First (m) of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
In the original Award we held that decision was based upon Article 22"Handling Train Orders":
Based upon the above rule we held that the use of the telephone by the track motor car operator was in violation of the Agreement and the employe was entitled to reparation for services of which he was unjustly deprived.
In an interpretation of the above Award, dated June 28, 1955, we held that Article 22-Handling Train Orders"-is a general rule which controls the employe's right to compensation. Article 4 (b) of the Agreement controls as to the amount of compensation an employe is entitled to when such services are rendered in advance of his regular working hours.
We now hold that if the violation occurred within two hours of the time the operator was supposed to go on duty, the claim should be paid under the Overtime Rule and if the violation occurred more than two hours before the employe was regularly assigned to go on duty, he should be paid under the Call Rule. The above interpretation is what was intended when the original Award was made.
Referee Edward M. Sharpe, who sat with the Division as a member when Award No. 6461 was adopted, also participated with the Division in making this interpretation.
Interpretation No. 1 to Award No. 6461
Docket No. TE-6180
Upon application of the representatives of the employes involved in the above Award, that this Division interpret the same in the light of the dispute between the parties as to its meaning, as provided for in Section 3, First (m) of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
The request of the Organization herein for an interpretation of the above Award wherein it was held "That the Carrier violated the Agreement and that because of such violation the employe is entitled to reparation for services of which he was unjustly deprived";
The above quote requires an interpretation of Article 4 (b) of the Agreement effective November 1, 1950 which reads as follows:
It is the position of the Carrier that an employe called less than two hours prior to his regular starting time shall be paid for on the actual minute basis.
It is the position of the Organization that an employe called prior to his regular starting time is entitled to two hours' pay at time and one-half as is provided for under Article 5 of the above Agreement.
Article 22-Handling Train Orders-is a general rule which controls the employe's right to compensation. Article 4 (b) of the Agreement controls as to the amount of compensation an employe is entitled to when such services are rendered in advance of his regular working hours. The amount of the award in the case at bar is controlled by Article 4 (b) heretofore quoted.
Referee Edward M. Sharpe, who sat with the Division as a member when Award No. 6461 was adopted, also participated with the Division in making this interpretation.