NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Albert L. McDermott, Referee
PARTIES TO DISPUTE:
THE ORDER OF RAILROAD TELEGRAPHERS
THE COLORADO AND SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of The Order
of Railroad Telegraphers on the Colorado and Southern Railway, that:
(1) The Carrier violated the Agreement between the parties
when it required or permitted employes not under the Agreement to
perform work belonging to employes covered by the Telegraphers'
Agreement.
(2) As a result of such violation, the Carrier be now required to
pay an amount equivalent to one day's pay for each violation to the
following employes on the dates next following:
T. G. Kornegay, Clayton, New Mexico, Monday, July 16, 1956
W. E. Spencer, Trinidad, Colorado, Tuesday, July 17, 1956
C. V. Conder, Des Moines, New Mexico, Thursday, July 19, 1956
B. Baker, Trinchere, Friday, July 20, 1956
C. V. Conder, Des Moines, New Mexico, Thursday, July 26, 1956
T. G. Kornegay, Clayton, New Mexico, Monday, July 23, 1956
EMPLOYES' STATEMENT OF FACTS: The Agreements between the
parties to this dispute are available to your Board and by this reference are
made a part
hereof.
On the following dates Section Foreman A. Kaparos, by use of telephone,
transmitted the following messages:
Watervale July 16, 1956
J. J. Grier Co., Denver, Chicago, Omaha.
Camp 133 as 70 men, full, need 1 waiter at once, send to Branson,
moving this P.M.
Signed, Smith 620 A. M.
12161
16321-1v
232
from the very outset of telephone use thereon, without objection, which fact
is conclusive proof of the parties' intentions, particularly where concerned with
a claim which itself must rely upon tradition, custom and practice for support
in the total absence of the least implication or inkling in the agreement to lend
sustenance thereto.
The Carrier earnestly submits that the Petitioner can produce nothing
which will support this novel character of claim and urges with deference
that same be denied.
The Carrier affirmatively states that all data herein and herewith submitted has been previously made known to the Employes' representatives.
With access to the Petitioner's ex parts submission, the Carrier offers
the foregoing, reserving its right, of course, to reply more thoroughly upon
receipt of a copy of the Petitioner's ex parte submission.
(Exhibits not reproduced.)
OPINION OF BOARD:
This dispute involves the transmission, via the
telephone, of a number of messages by a section foreman on the dates shown
in the Statement of Claim.
The record contains a letter dated December 16, 1953 from the Carrier
to the General Chairman which reads in part:
"In our conference to-day, it was agreed that if the Section
Foreman, in using the Dispatcher's telephone, would request the Dispatcher to ring some operator on duty and give that operator the
message directed to the Chief Dispatcher, that would be permissible
and would not involve a claim for an operator account slow order being
transmitted in that manner."
There is no evidence in the record to rebut the language contained in the
letter of December 16, 1953 which recognized and sanctioned the practice here
made subject of dispute.
FINDINGS:
The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 did not violate the Agreement.
10321-18
233
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Sehulty
Executive Secretary
Dated at Chicago, Illinois, this 26th day of January 1962.