OPINION OF BOARD: There are two principal issues in this case. The first is whether the claim is stale for not having been referred to this Board within applicable time limits; and the second is whether the Telegraphers' Agreement has been violated because a conductor telephoned a dispatcher for clearance to proceed beyond a red block signal where the train was one mile from a telegrapher's station which was unmanned at the time.

The basis of the Carrier's contention that the claim is stale, and therefore barred, is the same as under Award 10460 (this referee) viz. that the "employe or his representative" did not perfect an appeal from the decision of the highest designated officer of the Carrier within the applicable time limits of the National Agreement of August 21, 1954. This contention was sustained in Award 10460 because, under the facts, it was clear that the time had run. out before a proper appeal had been taken or this Board had otherwise. assumed jurisdiction of the dispute.

The facts are different in this case.

The Time Limit Rule in the National Agreement, which is a contractual time limit on a previously unlimited statutory right to refer disputes to this Board, applies to the Employes only.

Here, before the time the claim would have been barred by the Time Limit Rule, the Carrier, for the reasons discussed in Award 10460, referred the original employe claim to this Board for adjustment. This action was taken by the Carrier pursuant to its unlimited statutory privilege in Section 3. First (i) of the Railway Labor Act to refer a dispute to this Board. When the Board assumed jurisdiction of the dispute upon the Carrier's referral, there was no question remaining about the Employes perfecting an appeal within applicable time limits. Accordingly, the Carrier's contention that this Board has no jurisdiction to consider the claim on its merits cannot be sustained.

On the merits of this claim, the undisputed facts are that upon encountering a red block signal the conductor telephoned the dispatcher and received and copied a Block or Caution Card (a communication of record) to proceed through the blocked signal. This occurred one mile from a Telegrapher's station where the agent was off duty. He was not called to perform the work.

The rules in issue are:

Rule 1-Scope

"This agreement shall govern the employment and compensation of

Agents (included in Wage Scale)

Agent-Telegraphers

Agent-Telephoners

Telegraphers

Telegrapher-Clerks

Telephone Operators (except telephone switchboard operators)

Towermen

Levermen

Block Operators

Staffmen

Car Distributors (who are required to perform telegraph duties)

Manager-Wire Chief-Telegraphers

Wire-Chief-Telegraphers"

Rule 16 - Handling Train Orders

"No employe other than covered by this schedule and train dispatchers will be permitted to handle train orders at telegraph or telephone offices where an operator is employed and is available or can be promptly located, except in an emergency in which case the telegrapher will be paid for the call. (See Addendum No. 3)."

Addendum No. 8

"MEMORANDUM OF AGREEMENT between the Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen and Enginemen, Order of Railway Conductors, Brotherhood of Railroad Trainmen, Order of Railroad Telegraphers and the Chicago Great Western Railroad Company.

In settlement of the employes' request for a rule to govern the handling of train orders, messages and/or reports of record by train and engine service employes, it is agreed that train and/or engine service employes will not be required to call dispatchers on telephone in connection with train movement or take train orders over the telephone, except in emergency.

It is understood and agreed that:

(a) telephone conversation to give or receive information about work, and

(b) telephone conversation to give or receive information about the arrival of trains, and

(c) at junction points and at spur tracks, the operation of which prevents train and engine crews from having constant observation of passing trains, at stations where telegraphers are not now employed, telephone check on overdue trains,

will not be construed as a violation of this agreement.

"NOTE: Emergency is defined as follows: Storms, fogs, casualties, accidents, obstructions caused by wrecks, washouts, high water, slides and snow blockades, etc., unusual delay due to failure of fixed signal to clear, unusual delay to trains due to hot boxes, engine or other equipment failures, and break-in-twos, or other unforeseen situations where life or property may be in jeopardy, requiring immediate attention, which could not have been anticipated when train was at previous telegraph office and which would result in serious delay to trains."

The Employes contend that the agent was nearby and available and that he should have been called to perform the work since the handling of Block Cards, which they maintain are equivalent to Train Orders, is work reserved to telegraphers under the Scope Rule and Rule 16. In addition, they contend that a minimum call payment is required even if emergency conditions existed -which they do not accept-at the time of the telephone call since the Rule for Handling Train Orders requires payment whether an emergency exists or not.

The Carrier contends that a Block Card is not a Train Order; that even if it were there was no violation because the Train Order was not handled at a telegraph or telephone office as required under Rule 16; and that there was no violation of the Scope of Work Rule because an emergency existed, which, under Addendum No. 3, is an exception to when train and/or engine service employes may not call dispatchers on the telephone in connection with train movement or to take train orders.

That the development of the telephone and the subsequent expansion of its use in railroad operations have brought about serious difficulty in the interpretation of applicable telegraphers' agreements is an understatement. Almost 100 awards have been cited by the parties as being decisive of the issues here. The probative value of these decisions roughly balance out equally between the parties. Countless other awards, not dispositive of basic questions, have been issued on related points concerning the scope of the telegrapher's work and the exceptions thereto.

In this case, the Carrier describes the "legislative history" of each of the rules applicable to this claim, explaining how the telegraphers have sought to enlarge the Scope of Work Rule and how the Carriers have resisted this. Special attention is given to the adoption of Addendum No. 3 in 1939, "in settlement of the employe's request" for a new rule which would have given them the exclusive right to handle all communications of record. Because of the tenuous balance on which existing relations hinge, the Carrier appeals for a decision here which will interpret the existing rules and which will not have the effect of writing new rules. The decision here will be so limited. It will be based on the narrowest possible grounds-against the Carrier-by the application of existing rules to the facts. In the absence of new agreements to meet the fundamental changes brought about by the increased use of the telephone it would take the wisdom of Solomon and the courage of Daniel to do more.

There are four major questions dividing the parties here.

1. Was the Block or Caution Card a Train Order under the circumstances?

2. If the Block Card was a Train Order must the claim be paid under Rule 16, whether an emergency existed or not; or, must the claim be denied because the Train Order was not handled "at telegraph or telephone ofces where an operator is employed"?

3. If the Block Card was not a Train Order, or if it was but was not handled at a telegraph or telephone office, must the claim be paid under Addendum No. 3, which limits train and/or engine service employes from calling dispatchers on the telephone in connection with train movements or to take Train Orders over the telephone?

The Employes contend that the agent was nearby and available and that he should have been called to perform the work since the handling of Block Cards, which they maintain are equivalent to Train Orders, is work reserved to telegraphers under the Scope Rule and Rule 16. In addition, they contend that a minimum call payment is required even if emergency conditions existed -which they do not accept-at the time of the telephone call since the Rule for Handling Train Orders requires payment whether an emergency exists or not.

The Carrier contends that a Block Card is not a Train Order; that even if it were there was no violation because the Train Order was not handled at a telegraph or telephone office as required under Rule 16; and that there was no violation of the Scope of Work Rule because an emergency existed, which, under Addendum No. 3, is an exception to when train and/or engine service employes may not call dispatchers on the telephone in connection with train movement or to take train orders.

That the development of the telephone and the subsequent expansion of its use in railroad operations have brought about serious difficulty in the interpretation of applicable telegraphers' agreements is an understatement. Almost 100 awards have been cited by the parties as being decisive of the issues here. The probative value of these decisions roughly balance out equally between the parties. Countless other awards, not dispositive of basic questions, have been issued on related points concerning the scope of the telegrapher's work and the. exceptions thereto.

In this case, the Carrier describes the "legislative history" of each of the rules applicable to this claim, explaining how the telegraphers have sought to enlarge the Scope of Work Rule and how the Carriers have resisted this. Special attention is given to the adoption of Addendum No. 3 in 1939, "in settlement of the employe's request" for a new rule which would have given them the exclusive right to handle all communications of record. Because of the tenuous balance on which existing relations hinge, the Carrier appeals for a decision here which will interpret the existing rules and which will not have the effect of writing new rules. The decision here will be so limited. It will be based on the narrowest possible grounds-against the Carrier-by the application of existing rules to the facts. In the absence of new agreements to meet the fundamental changes brought about by the increased use of the telephone it would take the wisdom of Solomon and the courage of Daniel to do more.

There are four major questions dividing the parties here.

1. Was the Block or Caution Card a Train Order under the circumstances?

2. If the Block Card was a Train Order must the claim be paid under Rule 16, whether an emergency existed or not; or, must the claim be denied because the Train Order was not handled "at telegraph or telephone offices where an operator is employed"?

3. If the Block Card was not a Train Order, or if it was but was not handled at a telegraph or telephone office, must the claim be paid under Addendum No. 3, which limits train and/or engine service employes from calling dispatchers on the telephone in connection with train movements or to take Train Orders over the telephone?

Award No. 10535

Docket No. TE-9320