OPINION OF BOARD: The confronting dispute involves the American Train Dispatchers Association and the Southern Pacific Company (Pacific Lines). It is alleged that Article 1 (c) of the effective Agreement and a Memorandum of Understanding interpreting and construing this portion of the Agreement, was violated when it (the respondent) permitted, assigned or required Employes not covered by the Agreement to be primarily responsible for train movements on a certain portion of this property.
The above mentioned Memorandum of Understanding, bearing date of Sept. 13, 1937 interprets and construes this primary responsibility mentioned in Article 1 (c) to apply to Dispatchers, as follows:
The locale of this dispute is the "Gilroy Subdivision" and concerns the movement of Third Class and Extra trains Eastward between San Jose yard and Coyote and Westward between Watsonville Junction yard and Logan. There is approximately 16 miles of trackage between the first mentioned points of which some 7 miles is outside the yard limits of San Jose. The trackage between the latter points is approximately 7 miles with 3 miles of such being outside the yard limits of Watsonville Junction.
The record indicates that prior to June 29, 1953 all movements between these points were accomplished by securing necessary clearance cards and train orders. On this date there were issued bulletin instructions which were later placed in the operating timetables, to the effect that all Easterly movements out of San Jose yard and all Westerly movements out of the Watsonville yard were to proceed on yardmaster's instructions Some movements proceeded by "illuminated Letter M indication" changed when necessary, with use of clearance cards and train orders under certain circumstances.
The record further discloses that the questioned new method of operation was abandoned on Easterly movements out of San Jose yard on April 4, 1954; thus this claim, if meritorious, would only be valid between July 22, 1953, the first claimed date, and April 4, 1954, at this point.
The Organization asserts that the work here assigned to Employes (Yardmasters) not covered by the Agreement is of the type and character historically and customarily performed by Dispatchers and here is covered specifically by Article 1(c) of the Agreement and the interpretation placed thereon by the Memorandum of Understanding; and further that in directing that the movement be made on order and instruction of Yardmaster the Carrier was improperly removing the "primary responsibility" for such movements from the jurisdiction and supervision of Dispatchers, they being the only ones who can issue clearance cards and train orders.
The Respondent counters with the contention that there is no provision in the effective agreement that restricts its right to regular train movements through instructions and directions of yardmasters when operating rules are followed. It was pointed out that the operations here questioned were made by the yardmaster who received "oral authorization" from the Dispatcher, such authorization being relayed to him (the yardmaster)by a telegrapher in accordance with a long existing custom and practice; it was further asserted that in view of the fact that Dispatchers were on duty at all times there was no loss of work which justifies the imposition of a penalty.
This Board has held, and we adhere to the well established rule that switching and train crews can move and operate engines and trains within designated yard limits on authorization and under the direction of yardmasters and without orders or instructions from Train Dispatchers, however, in this instance, it is clear that train movements were made on instructions of the yardmaster at both of the points in question, that is between Jan Jose and 7628-17 129
Coyote and between Watsonville and Logan. These movements transgressed the yard limits of both points.
We are of the opinion and so find and hold that Article 1 (c) of the effective agreement and the Memorandum of Understanding which sets forth the mutual interpretation and application of this rule has the effect of delegating primary responsibility for train movements of this type to Train Dispatchers, otherwise the designation of such responsibility as covered in the expression "by train orders" or otherwise would be rendered meaningless. This is likewise true of the statement . . . regardless of the method employed which appears in the aforementioned Memorandum of Understanding. It is the kind or character of work not the manner of its performance which is here controlling. The rules, Memorandum of Understanding and the controlling principle present here were before this Board and disposed of on well reasoned grounds in Awards 6885 7575 and 7576. Each involved the parties hereto. Prior Awards of this Board, absent strong and compelling reason, should not be lightly considered and carelessly tossed aside.
It having been found that the agreement was violated, a penalty for such violation is justified. Otherwise the sanctity of the agreement cannot be upheld and violation thereof discouraged.
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
What we stated in our dissent to Award 7575, the undersigned reiterate here because the instant Award is also in serious error with respect to its interpretation of the applicable rules as applied to the Facts of Record, and unsound with respect to the imposition of a "penalty" or "fine".
Interpretation No. 2 to Award No. 7628
Docket No. TD-7794
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 and application, as provided for in Section 3, First (m) of the Railway Labor Act, as approved June 21, 1934, the following interpretation is made:
We are here requested to make a second interpretation of our Award 7628 for the reason that neither the Award nor the initial Interpretation thereof is clear or definite as to the extent or duration of the violation which we therein found to exist.
Both parties have filed voluminous statements and numerous exhibits which contain evidence that was not presented by either party prior to the time the record on which the award was based was closed. We must here again, as we have on other occasions, find and hold that such evidence is not subject to consideration. This being true, we must again reiterate that we found (1) that the Carrier's actions at both San Jose-Coyote and Watsonville-Logan were violative of the Agreement; (2) that reparations for such violations were proper; (3) that such reparations were payable on the San Jose-Coyote phase of the dispute between July 22, 1953 and April 4, 1954; (4) that insofar as the Watsonville-Logan phase of the dispute was concerned reparations were justified and payable from the inception of the violation to that time when such violation ceased.
It was the thinking of the Board that the record indicated the parties could best determine the extent of the violation at Watsonville-Logan and the amount of the reparations due.
In effect the Organization now asks that we force compliance with our award. Under the Railway Labor Act the scope of our authority is limited. We consider disputes and make awards. Compliance with the awards was expected and presumed by the framers of this Act and enforcement powers were not vested in this Board.
Interpretation No. 1 to Award No. 7625
Docket No. TD-7794
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 and application, as provided for in Section 3 First (m) of the Railway Labor Act, approved June 21, 1934, the following interpretation is made:
The Opinion, Findings and Award of the Board in this matter are clear, definite, concise and without ambiguity.
In essence we found that certain train movements in an Easterly direction between San Jose-Coyote and certain Westerly Movements between Watsonville-Logan conducted on authorization, and under the direction of Yardmasters, and without orders or instructions from Train Dispatchers, transgressed the Yard Limits at each of the named points, and were violative of the agreement.
The granting of reparations for that period, between July 22, 1953 and April 4, 1954, insofar as the San Jose-Coyote phase of the dispute was concerned, was predicated on evidence of record that the complained of method of operation occurred only during this period of time.
Insofar as the Watsonville-Logan phase of the dispute was concerned, the Board found, in brief, that reparations were due and payable commencing with the first date claimed, and continuing thereafter for so long as such violative operations continued. The parties are in a position to determine the extent and duration of the violation at Watsonville-Logan.
Referee Livingston Smith who sat with the Division, as a member, when Award No. 7628 was adopted, also participated with the Division in making this interpretation.