6779-2 978

Order Train Copied by

Station Date Time Number Number Conductor

" 1-17-52 1221pm 74 45 Mimms

IN CONCLUSION, Respondent Carrier desires to state:

(1). It has historically and traditionally been the practice for many years of telephonic communication on this property for conductors and other telegraphers to copy train orders at points where no regularly assigned telegrapher and/or telephoner is employed; also at points where there is employed a regularly assigned telegrapher and/or telephoner if the occasion for the copying of such order occurred during the hours such employe was not on duty or could not be located promptly, and in such event the regularly assigned telegrapher has been paid for a "call."

(2). At certain of the points enumerated in employes' statement of claim there has never been any regularly established telegraph office; at other points there were at one time regularly assigned telegraph operators, but the status of such stations has long since been changed, due to business conditions and other economic factors, such stations having been either re-classified to star agency, nontelegraph stations, or closed entirely and made prepay points. The status of these stations is set forth in detail on pages 4 and 5 of this submission.

(3). The claims, except in five cases as noted (pages 7 and S) are barred from consideration because of the application of Article 34-Time Limit on Claims Rule.

(4). The statement of-claim is vague, improper and impossible of determination as to who is the aggrieved individual employe and/or employes, and the employe representative has thus far been unable to produce the specific claimant and/or claimants allegedly entitled to the monetary consideration claimed.

(5). Carrier's Exhibit "R" sets forth the rule which the four train and engine service brotherhoods, cooperatively with the telegraphers, sought to negotiate with management in 1935, and we hold that such action is indicative that from 1922 (when the train order rule was adopted in the schedule agreement) until such action in 1935, the petitioners themselves did not construe the rule as having the intendment and application they are now seeking to give it.

(6). For the reasons set forth above, respondent carrier holds that the claim is not only invalid on its merits, but that with the exception of the five individual claims designated in the table appearing on pages 7 and 3 of this submission, such claims are barred under the time limit on claims rule, Article 34.

All data submitted in support of the Carrier's position has been presented to the duly authorized representative of the employes, and is made a part of the particular issue here in dispute.

(Exhibits not reproduced).

OPINION OF BOARD: The within claims involve the handling of train orders by conductors at non-telegraphic stations where no telegraphers are employed. At some of the points, telegraphers were once stationed. At other points, telegraphers have never been assigned.

The first labor Agreement with the Telegraphers on this Railroad became effective January 16, 1922. The Carrier makes a showing that train dispatchers' telephone circuits were established during the years 1910-1913. The Carrier asserts that train orders have been handled and copied by em-

ployes not covered by the Telegraphers' Agreement at non-agency stations, caretaker points and blind sidings (all of which were equipped with booth telephones) since the years above noted. The contention is supported by three affidavits.

Article 15 together with the tersely-stated Scope Rule, are given special attention by the parties, although other rules are cited. Article 15, provides:

"No employes other than covered by this schedule and train dis

patchers will be permitted to handle train orders at telegraph or tele

phone offices where an operator is employed and is available, or can

be promptly located except in emergency, conductors or engineers

will be permitted to located; except so, in which case the telegrapher will be paid

for the call."

This Division has considered the question posed here on a number of past occasions with varying conclusions being expressed. Without burdening this Opinion with a detailed analysis of the Awards made by this Division concerning train order rules, we find justification for going beyond bare construction of the language of the rule which is not free from ambiguity even though at first blush it may so appear. In short, to determine the intended meaning of the rule on a particular property, past conduct of the parties is of paramount importance. First, we consider what may have been the historical setting for the rule in the first instance. To this end, we have scanned the submissions in a number of Awards cited by the parties:'

Award 1220 concerned a Mediation Agreement and arose on the Rock Island Railroad. This Agreement provided, in part, that train and engine service employes will not be "required or permitted to take train orders." Claim for one day's pay was based upon violation of the Mediation Agreement by virtue of a conductor taking a train order by telephone at a blind siding where no telegrapher was located. The Carrier defended on the grounds that no penalty was provided for the taking of a train order at a blind siding, but on the contrary, only at a point where a telegrapher was stationed. In short, it contended, no telegraph office, no violation. A rule similar to our Rule 15 had been early adopted. After setting forth said rule, the submission of the Organization set forth the following description of the evolution of that rule:

"The telegraphers on this property have been negotiating agreements with the Management since early in 1903, and from the date of the first schedule, November 1, 1903, the above rule has not appeared in any succeeding contract until the one consummated and signed November 1, 1913. There is a reason for this, of course; the best reason we could desire-train service employes could not telegraph and telephones were not in use over the system. However, before the 1913 agreement was negotiated, it was discovered that there were a few train service men scattered over the railway who were able to telegraph and who were making use of that talent to move their trains over the line without the assistance of a telegrapher when they found an office closed, also the telephone for dispatching trains was installed on one or two divisions, which in some cases was being used. At this period railway companies were very strict as to just how station employes should handle a station, and the manner in which the train service employe would enter an office for the purpose of taking a train order was becoming rather annoying to the organization because of complaints from our agents; hence, Article 1-(c) was agreed to and it read:

'No employe other than covered by this schedule and train dispatchers will be permitted to handle train orders at telegraph or telephone offices where an operator is employed, can be promptly located and is available.'

"The phrase '. . at telegraph or telephone offices where an operator is employed . .' was placed in this rule, because, at the time there were no telegraph or dispatching telephone instruments located at points where no telegrapher was employed. However, since train service employes have started using the telephone to transmit and receive matter pertaining to the operation of their trains, our committee has made serious objections many and varied times. At every succeeding schedule negotiations an attempt has been made to incorporate in the agreement a rule prohibiting the use of the telegraph or telephone by train service employes for the purpose of receiving and or transmitting matter pertaining to the progress of their trains over the division, except in case of emergency. But up to the time of our negotiations leading up to the agreement under Mediation Case A-560, we have been successful.

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"Since we have been unable in late years, due to the spread of the dispatchers' telephone for handling trains, because of the menacing expansion of these violations, to make any headway in negotiations with the Management for rules that would put a stop to the gradual elimination of our jobs and our work handed over to other employes not protected by our agreement in constantly increasing amounts, we appealed to the four transportation brotherhoods and the Train Dispatchers' Association to join us in a presentation to the Management an understanding that would afford us some relief from the constant loss of our jobs and take an increased burden of responsibility off of the employes represented by the other organizations. Mediation Agreement A-560 is the result.

"This Mediation Agreement A-560 is but a subsidiary or adjunct to our parent agreement of January 1, 1928, and does nothing more than to modify and strengthen Article 1-(b) in the manner outlined. Because it will be readily discerned that A-560 stipulates nothing but handling train orders and blocking trains by telegraph and/or

telephone as is mentioned in Article 1-(b) of the agreement of 1928."

The above, while concerning the development of the rule upon the lines of another Carrier, is general in tenor, concerns a large operation and undoubtedly is reflective of conditions generally prevalent in the industry at the time. The recital demonstrates that the initial scope of the rule was limited to stations where telegraphers were located and that to control the work at other points, negotiation or mediation was deemed necessary by the organization in that instance.

Looking for practice as it is shown to exist on this property, we find the following. The train order rule was first negotiated in 1922. In July, 1935, the Telegraphers and the four train and engine service Brotherhoods, submitted a proposed Memorandum Agreement providing that train and engine service employes would not thereafter be required or permitted to transmit or receive direct by telephone train orders, clearances or messages in connection with the movement of their train, or report (OS) trains. The Carrier refused to sign the proposed Memorandum. By so doing, Carrier submits, the Petitioners admit that they did not construe the rule as having the intendment and application they are now seeking to give it. On the other hand, it may be that the proposal was made simply to clarify and avoid further dispute so the showing is of debatable value.

The Organization calls our attention to the submission in Award 5295, First Division. There involved was a claim of the Conductors and Trainmen on the instant property to be relieved of the requirement of copying train orders over the wires in alleged violation of their Agreements except in cases of emergencies. The Claimants disclaimed responsibility for such work which, they asserted, belonged to another class of employes. They contended

that they had been protesting these requirements since 1919 and in 1922 negotiated an Agreement, Article 20 (2) of which provided:

"Conductors and Trainmen will not be required to copy train orders over the wires, excepting under conditions of an emergency nature * * *."

That the objection was directed to practice of taking train orders at nontelegraphic points is clearly inferred from their contention "that the enormous amount of these requirements to copy and execute train orders is for the sole purpose of advancing the train and is caused by the closing of many telegraph and agency offices on the property, * * *" Claimants advise that the Telegraphers were submitting a case simultaneously to the Third Division. If this was done we are not aware of it becoming the subject of an Award.

The Carrier, in the above submission, called attention to the proposed Memorandum Agreement discussed in the second paragraph above stating that it had declined to execute the Memorandum because the Rules (Art. 20(2)) fully covered the subject. Carrier continued:

"Conductors, trainmen and yard service employes are not now and have not been in the past required to copy train orders, except in cases of emergencies, and the Respondent does not believe that there is any foundation or basis for the filing of the instant claim with the Board."

The First Division, assisted by Referee Carter, on December 12, 1940, issued a declaratory Award favorable to the Brotherhoods there involved. The case had been submitted to the Division in 1937.

A Carrier Member of the Division, after arguments were closed, submits, what he terms, newly discovered evidence. This evidence consists of correspondence relating to a Telegraphers' submission in 1937 mentioned in First Division Award 5295, of which this Division has no record. The correspondence explains the reason therefor. Second, the newly submitted evidence contains what appears to be a letter ratification of an oral agreement relating to the very point at issue.

In the interests of the expeditious handling of disputes, we would generally look with disfavor upon unilateral, supplemental submissions. However, in resolving disputes, we assume that the entire Agreement of the parties is before us. From the late showing made, the entire Agreement was neither before us nor the parties when they considered this controversy upon the property. Accordingly, we are remanding the dispute to the parties for further consideration in light of the new evidence and the opinions expressed herein. If negotiations do not result in settlement of this dispute within ninety days, the dispute may be resubmitted with appropriate comment on the evidence before mentioned.

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 the entire Agreement was not before the parties during consideration of the within dispute and accordingly the same is remanded, with privilege to resubmit if not resolved as stated in the Opinion.

AWARD