EMPLOYES' STATEMENT OF FACTS: There is hi evidence an agreement between the parties bearing date of December 1, 1944 (Reprinted March 1, 1951, including revisions) and a Memorandum of Agreement dated December 9, 1953, which was in effect on the date involved in the instant claim.
OPINION OF BOARD: The Claim is that there was a violation of the Agreement on January 6, 1954, when the conductor in charge of Extra 2345 West, Carnadero, California received "verbal instructions in lieu of a train order" by telephone from the train dispatcher at San Francisco. There is a telephone booth at Carnadero with a direct connection with the dispatcher's office, but there has never been a telegrapher's office at Carnadero. Extra 2345 had come in on the Hollister branch and before entering the main line it was necessary to learn whether regular trains 71 and 99, which were due there earlier, had passed. Learning from the dispatcher that they had passed, the conductor proceeded with Extra 2345 to his destination.
Specifically, the incident is claimed as a violation of Rule 29 of the Agreement, as amended by Memorandum of Agreement dated December 9, 1953. Rule 29 is entitled "Handling Train Orders", and the material portions are as follows:
No emergency is involved. Section (a) is not applicable, since it applies to locations where an operator is employed, which is not the case at Carnadero. It provides clearly that where an operator is employed no one else shall handle train orders, even in case of emergency, without the operator's being paid for a call.
On the other hand, Section (c) relates to locations where operators are not employed, and provides only that if train orders are copied there a telegrapher shall receive a day's pay. It is obvious that the parties' intention was to differentiate between the two situations mentioned in Sections (a) and (c); and while copying train orders is one phase of handling train orders, it is only one limited phase.
Since Section (c) relates to locations at which operators are not employed, the question is whether the telephoned information to the conductor constituted the copying of a train order. If a train order were handled at all it was certainly not copied; and we must give effect to Section (c) as written by the parties.
As noted above, in the claim the information received by the conductor is called "verbal instructions in lieu of a train order". Elsewhere in the record it is called "a verbal train order". But actually it was neither. The conductor did not receive a train order during the conversation; he merely 9318-15 409
inquired whether the trains scheduled to precede his on the main track had gone, and received an affirmative answer. Even if that information can be construed as "a verbal train order" or as "verbal instructions in lieu of a train order", the handling certainly cannot be construed as the copying of a train order. Thus in any event it is not forbidden by Rule 29 as amended.
It is not claimed that the use of telephones on the property is within the exclusive jurisdiction of the Telegraphers. But "OS" work and the handling of communications of record are claimed as exclusively theirs, and it is claimed here in the Employes' Reply of May 1, 1956, that the conductor announced his arrival at Carnadero to the dispatcher, that the latter made it of record by transcribing it on the train sheet, and that this therefore constituted OS work by the conductor. However the Carrier denied that it was made of record, and introduced as Exhibit "B" in its Answer to the Employes' Reply, a photostatic copy of the train sheet for January 6, 1954, the first column of which refers to this train and shows no such entry. It is thus unnecessary to discuss this point further.
Claimants' contention that the telephone call amounted to a train order or its equivalent, is based on Carrier's Operating Rule 83 which provides that a train must not leave a junction "until it has been ascertained that all superior trains due have arrived or left", etc., and that "visual identification, register check, or train-order check of a section, will be evidence that all preceding sections of the same schedule have also arrived or left". In the Employes' Reply to Carrier's Original Submission they say: "the only way in which a train can leave a branch line and enter the main track is by visual identification, register check, or train order check. The record shows that there was no visual identification of superior trains; neither was a register check supplied. Thus, there was only one method left-that of a train order check", etc.
Several things are wrong with this argument. First it is not true that "the only way in which a train can * * * enter the main line is by visual identification, register check, or train order check". Operating Rule 83 provides that these three items "will be evidence", not the only evidence. And even if the three were exclusive, it would not follow that because the phone conversation was neither the first or the second, it must therefore be the third. It could be a fourth kind of evidence, even though not authorized by the rule. Finally, Rule 83 is an Operating Rule, and not part of the Agreement; so that even if the three kinds of evidence were exclusive they would have no bearing on this question.
Since the telephone conversation did not constitute a train order, an oral train order, verbal instructions in lieu of a train order, the copying of a train order, OS work, or other work shown to be exclusively within the scope of the Organization, the claim must be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934; 9318-16 410