NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Livingston Smith, Referee
PARTIES TO DISPUTE:
THE ORDER OF RAILROAD TELEGRAPHERS
ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of The
Order of Railroad Telegraphers on the St. Louis, San Francisco Railway and
the St. Louis, San Francisco and Texas Railway:
(a) That the Carrier violated the terms of the Agreement
when it required or permitted employes not covered by said agreement, to copy by use of emergency and/or portable telephones
line-ups of train movements as follows:
December 2, 1952 at Milepost 361
January 29, 1953 at Milepost 397 plus 9 poles
January 30, 1953 at Milepost 392-14
February 2, 19.53 at Milepost 387-13
October 8 and 12, November 2 and 5, 1953 between
McCoy and Ste. Genevieve.
(b) The Carrier shall be required to compensate the senior
idle Telegrapher, Extra in preference, an amount equivalent to one
day's pay for each of the above enumerated days on which the
violations occurred.
EMPLOYES' STATEMENT OF FACTS: On December 2, 1952, at
12:30 P. M., Section Foreman Parrish used Dispatcher's phone No. 1 and
sent the following message:
"Dispatcher, this is Parrish at MP 361. Will you give Operator
Winslow a lineup for me?"
Dispatcher: "All right."
The Dispatcher rang operator L. V. Canady at Winslow, and requested
that she give Mr. Parrish a lineup. Operator Canady transmitted the following line-up over the Dispatcher's phone:
"No. 46
To all concerned:
No. 742 and 731 are annulled. This lineup for use between
Van Buren and Fayetteville and is void at 5:01 P. M.
O. E. H."
(9707
8183-26
995
but the employes have so subtly drafted paragraph (b) of their claim that
if this part of the claim were allowed as submitted, they would secure from
this Division a change in the Memorandum of Agreement of July 25, 1942
which they have been unsuccessful in obtaining on the property.
Paragraph 3 of the Memorandum of Agreement of July 25, 1942
specifically defines the penalties which the parties have agreed would be
paid under that agreement The penalty specified in paragraph 3 (a) is
"one day's pay to senior idle extra telegrapher of that date". This particular provision has been mutually interpreted to mean that when there is
no "senior idle extra telegrapher of that date" no penalty accrues against
the Carrier. The employes by their claim also hope to secure an award
which will enlarge upon this specific penalty so that in the event the Carrier
becomes liable for a penalty under Section 3 (a) and there is no "senior
idle extra telegrapher of that date", the Carrier will be required to compensate a senior idle regularly assigned telegrapher. A senior idle regularly
assigned telegrapher would be one who is off on his rest day or days.
It is evident that this claim has a dual purpose: First, to have this
Division reinterpret the working agreement rules and the July 25, 1942
Memorandum of Agreement as prohibiting the use of emergency telephones
by Maintenance of Way and other employes to secure motor car lineups or
train information except in emergencies. This is equivalent to a request for
a new agreement rule. Secondly, to amend paragraph 3 (a) of the July
25, 1942 Memorandum of Agreement to modify the penalty payment required
by that rule. These matters are beyond the ,jurisdiction and purposes for
which the National Railroad Adjustment Board was created and if it is the
desire of the employes to amend or revise existing rules, they should proceed
in accordance with Section 6 of the Railway Labor Act.
The claims here presented should be denied or dismissed for the reasons
herein stated and this Division is requested to so find.
All data in support of Carrier's position have been submitted to the
employes and made a part of the particular question in dispute.
(Exhibits not reproduced)
OPINION OF BOARD:
The
confronting claim
is made in behalf of
the senior idle Telegrapher, extra in preference, for reparations to the extent
of a day's pay, pro rata rate, for each of the dates enumerated in the claim,
account of alleged violation of the Scope Rule of the effective Agreement
and the Memorandum of Agreement bearing date of July 25, 1942, when
employes not covered by the agreement were permitted to receive written
messages, commonly described as "line-ups."
The Organization took the position that the "line-ups" in question were
clearly "written messages" within the meaning of the Scope Rule of the
effective Agreement which provides:
"ARTICLE I.
"(1) Employes, except train dispatchers, who are required
LN' direction of officer in charge to handle train orders, block or
report trains, receive or forward written messages by telegraph,
telephone or mechanical telegraph machines, (defined as telegraphers, telephone operators, block operators, operators of mechanical telegraph machines, agent-telegraphers, agent-telephoners)
agents, assistant agents, ticket agents, assistant ticket agents and
car distributors, listed in appended wage scale, also tower and train
directors towermen, levermen, staffmen, are covered by this Agreement and are hereinafter collectively referred to as employes, and
when so referred to all are included."
8183-27
996
Memorandum of Agreement bearing date of July 25, 19.1_' provides
as follows:
"MEMORANDUM OF AGREEMENT
"1. The term `emergency telephone' is construed for the
purpose of this agreement to mean a telephone ordinarily kept
under lock and key at fixed locations for use in emergencies, and
commercial telephones when used in lieu of an emergency telephone.
"2. The term `emergency' is construed to mean train accidents, fires, washouts, floods, personal injuries, main line obstructions, engine failures, train equipment failures, broken rails and
failures of block signals or other fixed signals, which could not
have been anticipated by dispatcher when train was at previous
telegraph office and which would result in serious delay to trains.
"3. If emergency telephones are used contrary to provisions
of Paragraphs 1 and/or 2 of Article I of Telegraphers' Schedule
Acreement, except in case of emergency as defined in Paragraph
Two (2) of this Agreement, employes covered by Telegraphers'
Schedule Agreement shall be paid as follows, provided claims are
submitted within thirty (30) days of date of occurrence:
(a) At stations or locations between stations where
there is no occupied position covered by Telegraphers'
Schedule Agreement, one day's pay to senior idle extra
telegrapher of that date.
(b) At stations where agent-telegrapher or telegraphers are employed and not on duty, a call as defined
in Article II, Paragraph Seven, to agent-telegrapher or
telegrapher whose hours of service converge nearest with
the time violation occurred.
(c) At stations where no telegraph service is maintained but there is a non-telegraph agent, or there are
non-telegraph towermen employed, non-telegraph agent
shall receive telegrapher's rate applicable at such station
for the month in which such violation occurs, or towerman whose hours of service converge nearest with the
time violation occurs shall receive telegrapher's rate
applicable at such tower for the month in which such
violation occurs.
"4. It is agreed following usage of emergency telephones shall
not be considered a violation of this agreement or Telegraphers'
Schedule Agreement:
(a) Installation of
emergency telephones at any
place in absolute permissive block territory or in centralized traffic control territory and their use by trainmen or
enginemen to obtain verbal authority to pass automatic
block or interlocking signals in a restrictive position.
(b) Use of emergency telephones by trainmen or
enginemen at junction points to report arrival or departure or request permission to occupy main track.
Dated at St. Louis, Missouri, this 26th day of July, 1942."
It was pointed out that the above scope was not one of the type that
has been construed as being general in nature but rather, one that specifically enumerates the work inuring to the employes covered thereby and
sets out work therein by special reference, thus clearly demonstrating the
8183-28
997
intent of the parties to reserve to the employes identified the task of receiving
written messages by way of telephone and telegraph. It was further asserted
that the scope rule had in effect been interpreted by the parties by way
of Memorandum of Agreement and that thereby it was agreed that when
emergency telephones were used contrary to the provisions of the Agreement certain payments would be made. It was further asserted that past
custom and practice contrary to the intent of the rule as interpreted by
the parties could not here prevail inasmuch as both the rule and the
supplementary agreement was clear and without ambiguity.
The Respondent asserted that the "Line-ups" in question were received
from an employe covered by the Agreement and at a point on the property
where there teas no telegrapher stationed, and further at a point where no
telegrapher had ever been stationed. It was pointed out that a "Line-up"
was not a train order, and did not have control over the movement of
trains or the operation thereof', and further that the information was
received from a telegrapher covered by the Agreement and as such constituted permissible use of the telephone by the "Non-covered" employe in
question. The Respondent took the further position that a long and uninterrupted custom and practice, contrary to that which the Organization
here contends the rules require, has prevailed and that likewise contrary
to the Organization's contentions settlements on the property were predicated
on factual situations not here present.
This dispute concerns the receipt of information regarding train movements at points between stations by operators of Motor cars, through the
use of either "emergency" or portable telephones. The operator of the
Motor Cars contacted the train dispatcher who in turn requested a telegrapher on duty at some intermediate station to furnish the requested
"Line-ups." The record indicates that such information is made of record
by the dispatcher and/or telegrapher issuing same as well as the recipient
thereof.
The Scope Rule with which we are here concerned is different than
most such rules in that it sets out or lists the various phases of work
inuring to the employes covered by the agreement. In addition thereto the
parties here have by "Memorandum of Agreement" in effect "interpreted"
the parties intended application of the rule under specified circumstances,
which includes provision for the payment of reparations when telephones
are used contrary to such specific circumstances.
The rule itself concerns "Employes * * * who ' * * receive or forward written messages by telegraph, telephone or mechanical telegraph
machines * * *."
In Award 5407, wherein conditions in all pertinent particulars were
similar to those here present, we stated:
" * * Carrier states that lineups are merely information to
the person receiving them; that there is no prescribed form in
which this information is written, and that it is not retained
and becomes obsolete within a few hours. However, the record
shows that employes required to operate motor cars shall be given
train lineups by the dispatchers under instructions of the Carrier.
Likewise, such employes are instructed to secure information concerning train movements from the train dispatcher. For a few
fleeting hours at least and irrespective of the form on which they
are noted, Carrier has made the possession of train lineups a job
obligation and necessarily a matter of record in the performance
thereof.
"We have previously conceded that train lineups are not train
orders in the sense that they grant no authority to use or obstruct
tracks over which trains are running. They are, however, essential
transportation communications in that they protect a necessary
s
183-29
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branch of the service from the dangers of another (Award 4516).
Such transportation communications have in numerous Awards of
this Division been found traditionally to be the work of telegraphers under scope rules similar to Rule 1 in the instant
Agreement. * * *"
The Respondent here asserts a long and continued practice contrary
to the Organization's position, will in itself invalidate the confronting claim.
In Award 5872 we considered past practice as it concerned the parties hereto
and the same scope rule. Therein we held:
"The Carrier urges that because of past practice this kind
of handling cannot be regarded as a violation. This Division has
often held that past practice in and of itself no matter how long
continued will not have the effect of permitting an agreement to
be violated. Past practice may be considered in determining what
the parties regarded as the true meaning of an ambiguous or uncertain Rule or provision thereof. It may also be considered in
instances where it is contended that there has been an agreed to
interpretation whereby the parties have become bound. Also there
are Awards wherein it has been held that there was a violation
of the Agreement but that equitably and reasonably on account of
past practice it was improper in the particular instance to assess
a penalty. But in instances such as this where the carrier asserts
that there was a long continuing well known practice of which
complaint has not been previously made this Division has quite
consistently held that such practice and delay is no bar to the
assertion of a proper claim.
"The conclusion therefore is that the Agreement bas been
violated as claimed and that nothing has been shown that would
justify its denial on the basis of past practice."
We are of the opinion that the above precedents are controlling and
that a sustaining award is warranted here.
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 Carrier violated the effective Agreement.
AWARD
Claims sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 19th day of December, 1957.
DISSENT TO AWARD 8183, DOCKET TE-7174
Here, error is compounded upon error. First, reliance is placed on
Awards factually distinguishable from the instant case and then, a sustain-
8183-36
999
ing award is rendered without regard to and in direct conflict with the
controlling and unambiguous language of the Agreement.
To find a violation of the Agreement, the Referee relies on
Award
5407 and states conditions there "in all pertinent particulars were similar
to those here present * * *." In making such a statement it is clear the
Referee failed to properly analyze the facts in that Award, for the facts
there are wholly distinguishable from the instant case. Here, a Maintenance
of Way employe, while at a point where no telegrapher had ever been
employed, obtained line ups, via telephone, from a telegrapher at the
adjacent station. Award 5407 involved a situation where a Maintenance of
Way employe copied line ups at a point where a telegrapher was employed
but not on duty. Obviously conditions in Award 5407 were not "in all
pertinent particulars" similar to those here present. The Award is in
serious error on that account.
It will be further noted that Award 4516 is cited in the Referee's
excerpt from Award 5407. This Referee is fully familiar with
Award 4516,
and he well knew that Award 4516 involved several claims, one of which
was factually identical to the instant claim and was denied. Similar claims
were likewise denied in Awards 7154, 6588, 6123 and 4772.
Quoting from Award 5872, involving these same parties, the Referee
makes the erroneous assumption of a similar violation to support a holding
that a practice in conflict with ar. Agreement will not invalidate a claim.
Looking to the facts in Award 5872 the Referee should have found that
his excerpt therefrom was directed to a situation wholly and factually
dissimilar to the instant case. There a telegrapher copied train orders
which he pinned to the train register to be picked up by crews leaving
the station after he had gone off duty.
We fail to comprehend how the Referee could sustain this claim on
the basis of the cited Awards. Even then, the unconditional sustaining of
this claim constitutes nothing less than an emasculation of the controlling
rule, assuming a violation was found. The Opinion clearly discloses a
failure by the Referee to properly apply that rule to Claim (b) as presented.
Twice this case was argued before the Referee, and his particular
attention was directed to Claim (b) and the Memorandum of Agreement
between the parties dated July 25, 1942. The Referee freely admitted the
Memorandum of Agreement controlled. Reference to this Memorandum of
Agreement is found in the Opinion wherein the Referee states:
"The Scope Rule with which we are here concerned is different
than most such rules in that it sets out or lists the various phases
of work inuring to the employes covered by the agreement. In
addition thereto the parties here have by 'Memorandum of Agreement' in effect `interpreted' the parties intended application of the
rule under specified circumstances, which includes rovision for
the payment of reparations when telephones are use contrary to
such specific circumstances." (Emphasis added)
The specific circumstances referred to above appear in Paragraph 3
of the Memorandum of Agreement which sets out the compensation for
three distinct circumstances.
The record discloses that (a) of Paragraph 3 would be applicable here
because the use of emergency telephones, including portable telephones, was
at points between stations where no telegraphers were ever employed.
Paragraph 3 of this Memorandum of Agreement provides:
"3. If emergency telephones are used contrary to provisions
of Paragraphs 1 and/or 2 of Article I of Telegraphers' Schedule
Agreement, except in case of emergency as defined in Paragraph
8183-31
1000
Two (2) of this Agreement, employes covered by Telegraphers'
Schedule Agreement shall be paid as follows, provided claims are
submitted within thirty (30) days of date of occurrence:'
and (a) thereunder stipulates:
"(a) At stations or locations between stations where there is
no occupied position covered by Telegraphers' Schedule Agreement,
one day's pay to senior idle extra telegrapher of that date."
(Emphasis added.)
Yet, in face of the above, the Award sustains Claim (b) which reads:
"(b) The Carrier shall be required to compensate the senior
idle Telegrapher, Extra in preference, an amount equivalent to one
day's pay for each of the above enumerated days on which the
violations occurred."
Paragraph 3 (a) is a special rule, and provides that reparations are
to be made only to the senior idle extra telegrapher of that date. It contains no provision that reparations will be paid to the senior idle telegrapher,
extra in preference.
The authority of this Board, by statute, is limited to construing Agreements as written, and we are without authority, under the guise of an interpretation, to change a plain and unambiguous provision in the Agreement.
That is a matter for negotiations.
Awards 7166, 7577, 7631, and 7718,
among others. It is in excess of the statutory function of this Board to
allow compensation where the Agreement itself does not authorize it.
An Award is no better than the reasoning contained within it. This
Award is grossly in error and for the reasons stated we dissent.
/s/ C. P. Dugan
/s/ J. F. Mullen
/s/ R. M. Butler
/s/ W. H. Castle
/s/ J. E. Kemp