NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
THE ORDER OF RAILROAD TELEGRAPHERS
DELAWARE & HUDSON RAILROAD CORPORATION
STATEMENT OF CLAIM:
Claim of the General Committee of The
Order of Railroad Telegraphers on the Delaware and Hudson Railroad, that:
1. Carrier violated the Agreement when on the 24th day of
December, 1955, it caused, required or permitted conductor Westcott
(a train service employe not covered by Telegraphers' Agreement)
Extra 4082 South, to handle (receive, copy and deliver) Train Orders
No. 10 and 11, at Rockland.
2. Carrier will be required to compensate senior idle telegrapher
(extra in preference) for one day's pay (8 hours) at the minimum
telegraphers' rate on the Champlain Division seniority district.
EMPLOYES' STATEMENT OF FACTS:
There is in full force and effect
a collective bargaining agreement entered into by and between Delaware and
Hudson Railroad Corporation, hereinafter referred to as Carrier, or Management, and The Order of Railroad Telegraphers, hereinafter referred to as
Employes or Telegraphers. The Agreement was effective July 1, 1944 and
has been amended. The Agreement as amended is on file with this Division
and is by reference made a part of this submission as though set out herein
word for word.
This dispute was handled on the property in the usual manner and
through the highest officer designated by carrier to handle such disputes and
failed of adjustment. The dispute involves interpretation of the collective
bargaining agreement and is, under the Railway Labor Act, as amended,
properly submitted to this Board for decision.
On the 24th day of December, 1955. Conductor Westcott, a train service
employe not covered by the Telegraphers' Agreement, handled train orders
Nos. 10 and 11 at Rockland. The train orders were in words and figures as
follows
[7037
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is that part which qualifies the restrictions by limiting its application
to offices where an operator is employed."
In Award 6055, Referee Begley, claim similar to that in the case at
issue was denied and the following is quoted from the Opinion:
"We have read the many awards of this Division covering the
identical question and claim, and there is a conflict in the awards.
However, in this claim we view the train orders copied by the employes outside of the Telegraphers' Agreement as permissibly incidental rather than an unwarranted invasion of the Telegraphers'
field. Award 4259. Single orders were copied on the three days in
question and this is insufficient to establish a breach of the Agreement. Therefore, this claim must be denied."
The carrier would also call attention to Award 6487, Referee Rader, where
the rules involved and the practices thereunder closely parallel the case at
issue. The following is quoted from the Opinion in Award 6487:
"It may well be argued that if such copying of train orders is
per se a violation of the Agreement, then the intervening of the long
period of time does not condone the practice. However, by such period
of time it appears that this has become a standard practice, acquiesced in by employes and that the parties have placed their own
interpretation on the same. And such being so, it is not the province
of this Division of the Board to interpret the rules for them."
In Award 7153, Referee Larkin, the claim was dismissed based on longestablished practice under existing rules. The following is quoted from the
Opinion in Award 7153:
"Both parties were fully cognizant of the provisions of Rule 217,
and the practice under it, at the time of the adoption of their Agreement in 1939. Had there been any serious intention to change this,
more definite language to that end should have been added in the
Scope Rule or at some other point in the Agreement. Failure to do
this in 1939, and failure to do it in the 1946 negotiations leads us to
the conclusion that the parties have not agreed to change the longestablished practice. It is a matter for further negotiation. It is not
for us to read into the language of the Scope Rule something which
the parties themselves have quite obviously omitted."
It is the carrier's position that claim should be dismissed account not
presented in accordance with rule covering handling of claims and grievances
as contained in the National Agreement of August 21, 1954; if decided on
its merits, the claim should be denied account not supported by agreement
rules and practices thereunder.
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.
(Exhibits not reproduced.)
OPINION OF BOARD:
Claims of this Organization against this Carrier involving the same material issues have been recently denied by this
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Board: Award 7955, Cluster, Referee; Claims 1, 2, 3, and 4 in Award 9204,
Stone, Referee; and Award 9262, Hornbeck, Referee.
The above precedents, if not absolutely binding, are the only ones presented in reference to these particular parties and their applicable Agreement,
Effective July 1, 1944, as amended, and are, therefore, especially deserving
of consideration.
We do not believe that the decisions rendered in the aforementioned
Awards are palpably wrong.
Having reached this conclusion, we are not justified in taking action
which would in effect reverse the previous Awards on the same property.
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 Employe involved in this dispute are respectively Carrier and Employe 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 Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 21st day of March 1962.