1. Carrier violated the agreement between the parties hereto when on 27th day of August, 1954, it caused, required or permitted Conductor Heustis, a train service employe to handle (receive, copy and deliver) Train Order No. 29 at Crown Point, New York.
4. Carrier violated the agreement between the parties hereto when on the 25th day of November, 1954, it caused, required or permitted Conductor Kilburn, a train service employe to handle (receive, copy and deliver) Train Order No. 10 at Essex, New York.
The Agent-Telegrapher assigned to Essex Station is not a resident of the village of Essex. He resides in the vicinity of Keeseville, N. Y., approximately eighteen (18) miles from Essex. It would have been impossible for the Agent-Telegrapher to reach Essex in time to avoid serious delay to not only Train SC-12, but to Train No. 34, a first-class passenger train that was following Train SC-12. This territory is on single track. Both of these trains had a Form 19 Train Order to meet northbound train WR-3 at Cummings siding, a point south of Wadhams.
On each occasion in this claim, i.e., August 27 and November 25, 1954, the Agent-Telegrapher was not available. On August 27th the AgentTelegrapher assigned to the position at Crown Point was not available account not at home. On November 25th the Agent-Telegrapher at Essex was not available because he resided eighteen (IS) miles from the location of his employment.
Management affirmatively states that all matters referred to in the foregoing have been discussed with the committee and made part of the particular question in dispute.
OPINION OF BOARD: We have here another docket involving the handling of train orders. Petitioner contends that on each of two occasions the Carrier required or permitted a conductor to handle train orders in violation of Article 23 of the effective agreement.
There is no dispute with respect to the facts. On the occasions cited, one at Crown Point and the other at Essex, conductors did in fact handle train orders. It is also of record that an agent-telegrapher is employed at each of these two points. On the dates in question the agent-telegraphers were not on duty, hence the contention that each should be paid for a call.
It is clear from the record that Crown Point and Essex are both "telegraph or telephone" offices. It is also clear that no emergency existed on either occasion involved in the claim. The Respondent Carrier defends its action on the basis of past practice and with a contention that Claimants were not available when the respective conductors handled the train orders at Crown Point and Essex.
With respect to the first defense, that of past practice, the Carrier does not prove that such has been the case at stations where "telegraph or telephone" offices are located. Even if such had been past practice, it would) have to yield to the clear and unambiguous terms of Article 23(a) quoted above. This article is a specific rule excepting only situations where emergencies are involved.
The Carrier's second defense is to the effect that Claimants were not available on the two occasions at issue. However, the record does not show that the Carrier made any effort whatsoever to ascertain whether or not Claimants were readily available to accept a call and perform the work within the time limits involved. Normally the Division has accepted unavailability as a defense only after the Carrier made a reasonable effort to acertain if the employe entitled to a call was in fact available. No such effort was made here. Under the circumstances revealed in this record, and 8260-12 900