THIRD DIVISION
(Supplemental)
(2) From Bristol, Va. Ticket Office, October 7, 1953, Bedroom "E" in Car BN 1, train 42, Marion to Washington, D. C., for Denman, Code JCT-758.
(3) From Bristol Ticket Office, October 15, 1953, Roomette 8, Car BN 1, train 42, Marion to Philadelphia, Pa., for Warner, Code JCT-770.
(4) From Bristol, October 22, 1953, Lower 7, Car 2264, train 42, Marion to Washington, D. C., for Lincoln, Code JCT-783. Also Lower 8, Car 2264, train 42, Marion to Washington for Wills, Code JCT-784.
(5) From Bristol, October 23, 1953, Lowers 1, 2, 3, 5, 6, 11 and 12, Car 101, train 42 Marion to Richmond for Hawkins and party for use October 28, 19'53, Code JCT-789.
(6) From Bristol, January 3, 1954, Upper 11, car 101, train 42 Marion to Richmond for Gaines, Code JCT-3.
(7) From Bristol, February 8, 1954, Roomette 8, Car BN 1, train 42, Marion to Washington, Greenwood, Code JCT-96.
(8) From Bristol, February 18, 1954, Lower 11, Car 101, train 42, Marion to Richmond for Gillespie, Code JCT-122.
(9) From Bristol, February 19, 1954, Roomette 8, Car BN 1, train 42, Marion to Newark, N. J., D'Marest. Code JCT-91.
(10) From Bristol, February 22, 1954, Lower 1, Car 101, train 42, Marion to Richmond, for Crenshaw, Code JCT-134.
(11) From Bristol, March 14, 1954, Lower 2, Car 101, train 42, Marion to Richmond, for Boatwright, Code JCT-171.
(12) From Bristol, Marsh 22, 1954, Lower 1, Car 101, train 42, Chilhowie, Va. to Richmond, for Bonham, Code JCT-184. Also from Bristol, March 22, 1954, Lower 2, Car 101, train 42, Chilhowie, Va. to Richmond, for Ball, Code JCT-185.
(13) From Bristol, March 25, 1954, Lower 10, Car 2264 train 42, Marion to Washington, for Warner, Code JCT-193.
(14) From Bristol, April 11, 1954, Lower 2, Car 101, train 42, Marion to Richmond, for Garnett, Code JCT-231.
(16) And on each similar violation which has occurred since the dates enumerated.
(b) And that the Carrier shall now be required to compensate the first Shift Operator and Ticket Seller at Marion, Va., who was entitled to perform this communication work, to the extent of a "call" -two hours at time and one-half rate for each date specified above.
3. (a) At or about 11:14 A. M., March 13, 1954, at Pembroke, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., trans- 10525- 4 42
mitting, by use of the telephone, from Pembroke to Roanoke, th_· following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator R. R. Blake, Pembroke, who was entitled to perform this communication work to the extent of a "call"-two hours at time and one-half rate.
4. (a) At or about 10:12 P. M., May 6, 1954, at Pulaski, Virginia, it permitted or required an employe not covered by the agreement to perform communication work, subject to the agreement, viz., transmitting by use of the telephone, from Pulaski to Roanoke, the following message:
(b) And that the Carrier shall now be required to compensate Operator E. B. Fuller, Pulaski, who was entitled to perform this communication work to the extent of a "call"-two hours at time and one-half rate.
5. (a) At or about 10:35 A. M., Sunday, May 23, 1954, at Pulaski, Va., it permitted or required an employe not covered by the agreement to perform communication work, subject to the agreement, viz., transmitting by use of the telephone, from Pulaski to Radford, Va., the following message:
(b) And that the Carrier shall now be required to compensate Operator E. B. Fuller, Pulaski, who was entitled to perform this communication work, to the extent of a Sunday "call" three hours at time and one-half rate . 10525-5 43
6. (a) At or about 10:02 P. M., August 8, 1954, at Pulaski, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Pulaski to Roanoke, Va., the following message:
(b) And that the Carrier shall now be required to compensate Operator E. B. Fuller, Pulaski, who was entitled to perform this communication work, to the extent of a "call"-two hours at time and one-half rate.
7. (a) At or about 5:30 P. M., May 13, 1954, at Glen Lyn, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Glen Lyn to Bluefield, W. Va., the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator J. E. Price, Glen Lyn, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
8. (a) At or about 6:30 P. M., May 20, 1954, at Glen Lyn, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Glen Lyn to Bluefield, W. Va., the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator J. E. Price, Glen Lyn, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
9. (a) At or about 2:48 P. M., June 13, 1954, at Salem, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Salem to Roanoke, Va., the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator A. J. Bennett, Salem, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
10. (a) At or about 10:55 A. M., July 11, 1954, at Salem, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Salem to Roanoke, Va., the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator A. J. Bennett, Salem, who was entitled to perform this communication work, to the extent of a Sunday "call" - three hours at time and one-half rate.
11. (a) At or about 8:17 P. M., July 22, 1954, at Christiansburg, Va., it permitted or required an employe not covered by the agreement 10525-- 7 45
to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Christiansburg to Walton, Va., the following message:
(b) And that the Carrier shall now be required to compensate Operator-Clerk Gaynor Harmon, Christiansburg, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
12. (a) At or about 9:22 P. M., July 29, 1954, at Christiansburg, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Christiansburg to Walton, Va., the following message:
(b) And that the Carrier shall now be required to compensate Operator-Clerk Gaynor Harmon, Christiansburg, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
13. (a) At or about 9:25 P. M., August 19, 1954, at Christiansburg, Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Christiansburg direct to the train dispatcher at Roanoke, Va., the following report of record:
The dispatcher who received and recorded this report of record immediately issued the following message: 10525-8
(b) And that the Carrier shall now be required to compensate Operator-Clerk Gaynor Harmon, Christiansburg, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
14. (a) At or about 8:45 P. M., August 26, 1954, at Christiansburg, Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Christiansburg direct to the train dispatcher at Roanoke, Va., the following report of record:
The dispatcher who received and recorded this report of record immediately issued the following message:
(b) And that the Carrier shall now be required to compensate Operator-Clerk Gaynor Harmon, Christiansburg, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
15. (a) At or about 1:25 P. M., July 24, 1954, at Blacksburg, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Blacksburg to Christiansburg, Va., the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator J. R. Nunn, Blacksburg, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
16. (a) At or about 6:42 P. M., September 24, 1954, at North Fork, West Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from North Fork to Tug Tower, (W. Va.), the following messages:
(b) And that the Carrier shall now be required to compensate Agent-Operator Walter Price, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
17. (a) At or about 5:20 A. M., October 28, 1954, at Bassett, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., 10525 10 48
transmitting by use of the telephone, from Bassett to Payne, Va., the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator J. R. Young, Bassett, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
18. (a) At or about 8:15 A. M., October 28, 1954, at Shenandoah Jet., West Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Shenandoah Junction to Antietam, Maryland, the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator W. L. Fink, Shenandoah Junction, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
19. (a) At or about 7:55 P. M., February 2, 1955, at Waynesboro, Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., copying (receiving) by use of the telephone from Roanoke, Va., to Waynesboro, the following message:
Ib) And that the Carrier shall now be required to compensate Operator M. T. Ramsey, Waynesboro, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate. 10525 -11 49
20. (a) At or about 7:27 P. M., February 2, 1955, at Buchanan, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone from Buchanan to Roanoke, Va., the following message:
(b) And that the Carrier shall now be required to compensate Agent-Operator W. M. White, Buchanan, who was entitled to perform this communication work, to the extent of a "call" - two hours at time and one-half rate.
21. (a) At or about 2:20 A. M. February 23, 1954, at Belspring, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Belspring to Walton, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or otherwise idle telegrapher on the Radford Division who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the minimum telegrapher's rate.
22. (a) At or about 6:40 A. M., April 22, 1954, at Belspring, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Belapring to Walton, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or otherwise idle telegrapher on the Radford Division who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the minimum telegrapher's rate.
23. (a) At or about 3:50 A. M., May 5, 1954, at Belspring, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Belspring to Walton, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or otherwise idle telegrapher on the Radford Division, who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the minimum telegrapher's rate.
24. (a) At or about 3:45 P. M., May 10, 1954, at Belspring, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Belspring to Walton, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or otherwise idle telegrapher on the Radford Division who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the minimum telegrapher's rate.
25. (a) On July 14, 15, 16, 1954, and subsequent days since, at Pocahontas, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agree- 10525-13 51
ment, viz., transmitting by use of the telephone, from Pocahontas to Bluefield, West Virginia and to other points, reports of record, i.e., Daily Report of Coal Cars handled at Operations (Form CT-107) such as reflected by the following:
(b) And that the Carrier shall now be required to compensate the senior extra or otherwise idle telegrapher on the Pocahontas Division, who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the minimum telegrapher's rate-for each of the dates specified above and for each and every day similar reports have been so handled at Pocahontas.
26. (a) On July 15, 16, 19, 1954, and subsequent days since, at Wilcoe, West Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Wilcoe to Gary, W. Va., reports of record, i.e., Daily Report of Coal Cars Handled at Operations (Form CT-107) such as reflected by the following:
(b) And that the Carrier shall now be required to compensate the senior extra or otherwise idle telegrapher on the Pocahontas Division, who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the minimum telegrapher's rate-for each of the dates specified above and for each and every day similar reports have been so handled at Wilcoe.
27. (a) At or about 9:47 A. M. August 17, 1954 at Front Royal, Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Front Royal to Roanoke, Va., the following report:
(b) And that the Carrier shall now be required to compensate the senior idle extra telegrapher on the Shenandoah Division who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the Front Royal telegrapher's rate.
28. (a) At or about 8:2'5 A. M., December 3, 1954, at Front Royal, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Front Royal to Luray, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or idle telegrapher on the Shenandoah Division who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the Front Royal telegrapher's rate.
30. (a) At or about 2:59 P. M., October 19, 1954, at Shenandoah Junction, West Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., copying and receiving by use of the telephone, from Shepherdstown, W. Va., the following message:
(b) And that the carrier shall now be required to compensate the senior extra or idle telegrapher on the Shenandoah Division who was entitled to perform this communication work, to the extent of a day's pay -eight hours at the Shenandoah Junction telegrapher's rate.
31. (a) At or about 12:05 P. M., October 26, 1954, At Shenandoah Junction, West Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Shenandoah Junction to White Post, Virginia, the following message:
Also at or about 3:52 P. M. on the same date, at Shenandoah Junction, West Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., copying and receiving by use of the telephone, from Shepherdstown, W. Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or idle telegrapher on the Shenandoah Division who teas entitled to perform this communication work, to the extent of a day's pay - eight hours at the Shenandoah Junction telegrapher's rate.
32. (a) At or about 3:45 P. M., October 27, 1954, at Shenandoah Junction, West Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., copying and receiving by use of the telephone, from St. James, Md., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or idle telegrapher on the Shenandoah Division who was entitled to perform this communication work to the extent of a day's pay - eight hours at the Shenandoah Junction telegrapher's rate.
33. (a) At or about 10:02 P. M., August 8, 1954, at Roanoke Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement viz., copying and receiving by use of the telephone, from Pulaski, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or idle telegrapher on the Radford Division who was entitled to perform this communication work, to the extent of a day's pay- eight hours at the Roanoke telegrapher's rate.
34. (a) At or about 2:15 P. M., November 17, 1954, at Roanoke, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone from Roanoke to Max Meadows, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or idle telegrapher on the Radford Division who was entitled to perform this communication work to the extent of a day's pay-eight hours at the Roanoke telegrapher's rate.
35. (a) At or about 10:00 A. M., November 12, 1954, at Waynesboro, Virginia, it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, viz., transmitting by use of the telephone, from Waynesboro to Shenandoah, Va., the following message:
(b) And that the Carrier shall now be required to compensate the senior extra or idle telegrapher on the Shenandoah Division who was entitled to perform this communication work, to the extent of a day's pay-eight hours at the Roanoke telegrapher's rate.
36. (a) At or about 10:00 A. M., November 12, 1954, at Shenandoah, Va., it permitted or required an employe not covered by the agreement to perform communication work subject to the agreement, 10525-19 57
EMPLOYES' STATEMENT OF FACTS: The foregoing claims have arisen by reason of violations of a craft and class agreement, between the parties, bearing the effective date of December 1, 1939, a copy of which is available to your Board. The acts permitted or required by the Carrier constitute transgressions of the bargained work rights embraced in the Scope Rule of Article 1 of said Agreement. In that connection the Agreement provides:
The claims as made are consistent with other rules of the Agreement which will be cited. The facts and the Position of the Employes as to each claim follow:
Marion is located on Carrier's Radford Division and the positions listed in the Schedule of Wages of the Agreement of December 1, 1939 at Marion are:
The hourly rates of pay have since been adjusted on several occasions. The abbreviations used are for Agent and Operator; First Operator and Ticket Seller; and Second Operator.
These three positions have been carried in the Telegraphers' Agreement since 1908. The Agreement effective April 1, 1908, lists them in the following manner:
The duties of these employes from that date have included the performance of all communication work and ticket selling at Marion, in addition to other duties. The scope rule of the 1908 agreement, Article 1, reads:
"Employes required to perform telegraph service of any character or duration, agent-telegraphers and other employes included in this schedule of wages, will be considered Telegraphers within the meaning of this agreement, irrespective of title by which designated or character of service performed."
Effective with the Agreement of September 1, 1911, Article 1, was revised to include the telephoner class, as follows:
A comparison of the 1911 scope rule with that of the current agreement reveals that there has been no change except for the addition of towermen and levermen which classes were brought into the scope rule with the April 1, 1920 agreement. Notwithstanding the fact that the positions at Marion had been incorporated in the Telegraphers' Agreement for 45 years, the Carrier issued the following bulletins:
"Effective Wednesday, September 30, 1953, Time Table rule 117 in current time table No. 5 is hereby amended to change the hours of the first trick operator-ticket seller at Marion, 710AM to 310PM, to 745AM to 445 PM. 10525-126 1
into the current Agreement were fully cognizant of the fact that under the previous Agreements the work of transmitting and receiving messages of record, or not of record, by telephone was not being treated as exclusively reserved to the classes of employes listed in the Telegraphers' Agreement. Consequently, as your Board said in Award 4791, it must be held that the re-adoption of the rule, in the instant Agreement as well as in other earlier Agreements, was not intended to change the meaning previously given to it. And, as your Board further held in Award 4791, it follows that under the Agreement on this property it is not a violation of the Scope Rule of the Telegraphers' Agreement for employes, not covered by the Telegraphers' Agreement, to transmit or receive by telephone message of record or not of record.
The Carrier's position as set forth in this submission clearly proves there is no merit whatever to the Employes' claims in this case. In support of its position, the Carrier cites the following Third Division awards:
OPINION OF BOARD: In their submission here the employes group 36 claims based on alleged violations of the Scope Rule of the Telegraphers' Agreement by employes not covered thereby, at various points on the Carrier's property. The dates involved range from October 9, 1953 through November 12, 1954. Twelve of these claims are barred from further consideration by the provisions of Article V of the National Agreement of August 21, 1954 in which time limits for progressing claims are specified. These twelve claims are numbered 11, 12, 13, 16, 17, 18, 27, 28, 30, 31, 32 and 34 and accordingly they will be dismissed.
The controversy concerns telephone communications by or with clerks and other employes not subject to the Telegraphers' Agreement. The Employes 10525-121 159
contend that the Scope Rule was violated when clerks, dispatchers, agents and others handled communications of record by means of the telephone at the times and places specified in a voluminous submission. The Carrier, at equal length, maintains that telephone communications are not exclusively the work of telegraphers and that those involved in this dispute do not properly fall in the category of communications of record.
The Telegraphers' Scope Rule identifies employes who are included in the term "telegraphers" as used in the Agreement, but it does not attempt to describe the nature of the work required of such employes.
In Award 4208 we held that the use of the telephone on a railroad is not an exclusive function of employes covered by the Telegraphers' Agreement.
In Award 5181 we pointed out that in interpreting the Telegraphers' Scope Rule it has been necessary to resort to custom, past practice and tradition, and thereby some common boundaries have become generally recognized. A significant element considered in determining if specific communication work is, or is not, properly reserved to telegraphers, is the question whether it is a communication relating to the control of transportation and if a record is required to be preserved. While telephone operators are mentioned in the Scope Rule it has been generally recognized that all messages or communications transmitted by telephone are not thereby included in the exclusive domain of telegraphers. Failure to record a message or report which should have been made of record would not alter the character of the work done insofar as the Scope Rule is concerned. On the other hand, a message telephoned by a clerk to a train crew, which does not affect the operation of trains as do train orders and other communications relating to or affecting the safety of persons and property and which by their very nature should be made of record, would not be exclusively reserved to telegraphers. Award No. 5182. The mere fact that someone reduces the substance of a telephone call to writing does not necessarily make it a message of record as that phrase is commonly understood in railroad operation.
The remaining 24 claims to be considered on the merits relate to approximately 47 messages or communications sent or received by telephone by clerks and others not covered by the Telegraphers' Agreement. These communications involved a wide range of subjects. In general they encompass such as car numbers and contents; requests for box cars; report of a corpse on board a train; requests and advices concerning sleeping car and coach accommodations; requests to have cars picked up; request for authority to take a vacation; reports of missing railroad tickets; reports concerning rock slides; reports of coal car numbers; advice that an employe would report for duty as section foreman, and other reports of car movements.
We think the tests outlined in our Awards Nos. 5181 and 5182 in respect of communications of record are applicable to these claims. We are unable to say that these communications can properly be said to have affected the operation of trains or the safety of persons and property and were required to be made matters of record in the sense contemplated in those Awards. In the light of our findings in those cases, as well as in other Awards such as Nos. 5660, 6330 and 6363, we are constrained to find that these claimed violations of the Scope Rule lack support.
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: 10525-122 160