NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Harold Kramer, Referee
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen of America on the Illinois Central Railroad Company that:
EMPLOYES' STATEMENT OF FACTS: On April 26, 1957, the claimants, Signalman W. R. Brown and Assistant Signalman D. H. Perry, were regularly assigned to Signal Gang No. 310 under Signal Foreman C. W. McDaniels, and worked with and under the direction of Leading Signalman J. C. Dickerson at New Orleans, Louisiana.
The employes of Signal Gang No. 310 who were working with and under the direction of Leading Signalman Dickerson on April 26, 1957 were: Signalman J. C. Davis; Signalman W. R. Brown; Assistant Signalman D. W. Perry; Assistant Signalman H. M. McCullough; and Signal Helper C. P. Speed.
On April 26, 1957, Signal Maintainer R. H. Johnson worked as night Signal Maintainer on the New Orleans Terminal, and Assistant Signal Maintainer J. H. Cowart worked with a Signal Maintainer on the Termi-
Carrier reafrms its position that this claim is before the Board prematurely for failure on the part of the Employes to handle this dispute in accordance with Section 2, Second and Sixth of the Railway Labor Act. Without prejudice to this position, the Carrier would like to point out that should the position of the Employes be sustained your Board would go beyond its function of interpreting existing provisions in the agreement between its parties as delegated by the Railway Labor Act, and in effect write a new rule into the agreement for the following reasons:
Refer to Awards 7057 and 14566, First Division; 1474, Second Division; Awards 389, 871, 1230, 1609, 2612, 2622, 3407, 4763, and 5079, Third Division; and Award 501, Fourth Division, as evidence of such findings.
All data in this submission have been presented to the Employes and made a part of the question in dispute.
OPINION OF BOARD: We have in this dispute conflicting statements regarding the facts and which we are not able to reconcile. We also note, that there was no conference on the property regarding this dispute.
An exchange of correspondence between the Carrier and the Organization is as follows:
"Please consider this as a appeal to the letter of declination from Mr. J. C. Jacobs, Engineer Maintenance of Way, dated October 21, 1957 concerning the failure to call the senior employes for overtime work on the New Orleans Terminal Division.
"On Friday, April 26, 1957, Signal Supervisor, T. J. Kremer, instructed his lead signalman, J. C. Dickerson, to take certain help and report to Berney, La., Saturday, April 27, 1957, at 8:00 A. M. The signal gang was to report to Berney to perform necessary work to clear the main line after a derailment. 10868-2s 473
"Mr. Kremer instructed Dickerson to call gangmen, R. H. Johnson, Signalman; J. C. Davis, Signalman; H. M. McClough, Assistant Signalman; C. P. Speed, Helper. McClough and Speed were not available when they were called at 6:30 P. M. Friday. At 8:00 A. M. Saturday morning Dickerson, with Johnson, Davis, and J. H. Cowart, Assistant Maintainer, left for Berney and performed work for twelve (12) hours.
"We contend that Mr. Johnson and Mr. Cowart were called in error and that Mr. W. R. Brown, Signalman; and D. W. Perry, assistant signalman; should have been called in their place. It has been the practice of this company to give extra time to the senior men, and Brown and Perry have seniority over Johnson and Cowart respectively. We think that this is backed up by the National Railroad Adjustment Board, Award No. 7242, Docket Number SG-7162, Third Division.
"We would appreciate your investigation of this claim, so as you may be able to sustain our position in that senior-men, Brown and Perry of signal gang should be paid at the rate of time and one-half for twelve (12) hours that were worked by junior men on over time call.
"If you do not sustain our position, we desire a conference at your earliest convenience as provided under Section 2 of the Railway Labor Act.
"Please refer to your letter of October 29, 1957, concerning claim in favor of W. R. Brown, Signalman, and D. W. Perry, Assistant Signalman, account not called for overtime work on Saturday, April 27, 1957, at Remy, Louisiana.
"My investigation of this matter reveals that on April 26, 1957, there was a derailment at Remy, Louisiana. The Supervisor of Signals went to Remy, Louisiana, to ascertain the extent of repairs necessary and did not return to Kenner, Louisiana, until about 5:15 P. M.
"Upon his return, he contacted Lead Signalman J. C. Dickerson and instructed him to notify Signal Gang 310 to report to 10868-29 474
the tool house on Saturday, April 27, 1957, to perform overtime at Remy, Louisiana.
"Mr. Dickerson was able to contact but two members of Signal Gang No. 310 who were available for the work, Signalmen J. C. Davis, Sr., and R. H. Johnson. Assistant Signalman H. M. McCullough did not desire to work and Signal Helper C. P. Speed was out of town.
"In order to meet the service requirements, the Signal Supervisor determined that one additional man would be needed for pole line work, and the only employe that was immediately available was Assistant Signal Maintainer J. H. Cowart, who went with the members of Gang No. 310 to Remy, Louisiana.
"Since it has been your position that the senior men of the gang utilized on overtime are entitled to be used on overtime, I fail to find any basis for your contention that Mr. R. H. Johnson was called in error as he was a member of Gang No. 310 on the claim date and was properly utilized.
"When it was known that an additional employe was necessary on Saturday, April 27, 1957, Ms. Dickerson made several attempts to contact senior employes, but only Assistant Signal Maintainer Cowart was available for immediate service.
"In view of the circumstances, I find that there has been no violation of the agreement, and your claim is, of necessity, declined. I am available to discuss this matter in conference at any mutually agreed upon time.
"December 26, 1957 "Mr. R. E. Lorentz, Manager of Personnel
Illinois Central Railroad 135 East Eleventh Place Chicago 5, Illinois
"Refer to your letter of declination on December 16, 1957, concerning claim in favor of W. R. Brown, Signalman, and D. W. 10868 -s1 476
"This is to advise that if I am allowed to attend the Suggestion Committee meetings now that I am back as General Chairman I will be in Chicago every Thursday, if Thursday of any week of near future is not convenient to you I will be available at your notice.
"Please refer to our past correspondence concerning claim appealed to you in behalf of Signalman W. R. Brown and Assistant Signalman D. W. Perry, account senior men not being used for overtime work on Saturday, April 27, 1957, at Remy, Louisiana.
"Also please refer to your letter of declination dated December 16, 1957, concerning the above claim;
"Please also refer to my letter dated October 29, 1957, concerning this claim, at which time I advised that if you did not sustain our position, we desired a conference at your earliest convenience as provided under Section 2 of the Railway Labor Act. We now hold that you are in violation of this Railway Labor Act in as much that you did not set a time, place, or date for such a conference.
"With the above in mind this is to advise that we cannot accept your decision and we are now appealing this claim to Mr. Jesse Clark, President, Brotherhood of Railroad Signalmen, 503 Wellington Avenue, Chicago 14, Illinois, requesting that he handle the claim with the National Adjustment Board, Third Division.
"Any further correspondence should be handled with Mr. Clark.
"Please refer to your letter March 7, 1958, claim of Signalman W. R. Brown and Assistant Signalman D. W. Perry.
"I have no objections to a conference, but as I stated in my letter of March 7, 1958, we were turning the claim over to Mr. Jesse Clark, President, Brotherhood of Railroad Signalmen, 503 Wellington Avenue, Chicago 14, Illinois. If it is Mr. Clark's desire that I hold a conference with you, I will be present.
"Second. All disputes between a carrier or carriers and its or their employes shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employes thereof interested in the dispute."
There is evidence in the above lengthy exchange of correspondence regarding willingness of the parties to meet but the conference on the property, as required by Section 2, Second, of the Railway Labor Act did not take place. We have no way of knowing whether a conference in this dispute would be useful or useless. In our opinion Section 2, Second is clear and specific and mandatory. This dispute therefore is remanded to the parties to attempt to adjust their differences as required by the Railway Labor Act and Circular 1, and is not therefore properly before this Board.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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
LABOR MEMBER'S DISSENT TO AWARD 10868,
DOCKET SG-10729
The majority is in error in remanding Award 10868 for the reasons advanced therein.
The record and the Opinion of the Board quote correspondence between the Organization's General Chairman on the property and the Carrier's Manager of Personnel which shows that the General Chairman repeatedly requested a conference with the Manager of Personnel and that the Manager of Personnel stalled in setting a date for such conference until after the General Chairman had advised him that he was forwarding the claim to the Organization's National Headquarters for progressing to this Board. 10868-35 480
The action of the majority in remanding this claim is not in keeping with the Railway Labor Act, Section 2, General Purposes which states:
The Carrier was not in compliance with the above quoted portions of the Railway Labor Act and Award 10868 is in error; therefore, I dissent.
CONCURRING OPINION OF CARRIER MEMBERS,
AWARD 10868, DOCKET SG-10729
Award 10868 is clearly correct in holding that: " . Section 2, Second is clear and specific and mandatory. . '. It is also clearly correct in holding that: ` . the conference on the property, as required by Section 2, Second, of the Railway Labor Act did not take place . . . .
While there is some precedent in prior Awards for remanding such a case to the parties, that procedure is superfluous where, as here, it is evident that the parties are subject to the provisions of Article V of the August 21, 1954 National Agreement, the time within which proceedings could have been properly instituted before the Board has long since expired, and the claim is therefore barred. It would have been better procedure to simply dismiss the claim instead of remanding it to the parties -see our recent Awards 10852 (McGrath) and 10939 (McMahon).