THE DELAWARE AND HUDSON
RAILROAD CORPORATION
(1) Carrier violated the agreement when on April 4, 1956, it caused, required or permitted Conductor J. E. Coates to handle (receive, copy and deliver) train order No. 15 at North Creek, N. Y., Agent-Telegrapher J. M. Parkis being available but was not called.
(2) Carrier shall compensate J. M. Parkis for one call for the above violation, as provided for in Article 3(d) of the agreement. (Carrier's Case No. 10.56 ORT)
(3) Carrier violated the agreement when on the 10th day of May, 1956, it caused, required or permitted Conductor Gerald Manell, Engine 4095, to handle (receive, copy and deliver) train order No. 3 at Port Kent, N. Y., Agent-Telegrapher Walden D. Taylor being ready and available to perform this work but was not called.
(4) Carrier shall compensate Walden D. Taylor, Agent-Telegrapher, Port Kent, N. Y., for one call under Rule 3 (Call Rule) at the rate of $2.022 per hour for three hours, total $6.07. (Carrier's Case No. 8.56 ORT)
(5) Carrier violated the agreement when on June 19, 1956, it caused, required or permitted Conductor W. Benjamin to handle (receive, copy and deliver) 19 order No. 13, also on June 20, 1956, 19 order No. 14 at North Creek, N. Y., Agent-Telegrapher J. M. Parkis being available but was not called.
(6) Carrier shall compensate Agent-Telegrapher J. M. Parkis for a call for each of the above violations, as provided in Article 3(d) of the agreement.
(7) Should this type of violation at North Creek be continued, Agent-Telegrapher J. M. Parkis shall be compensated for each violation and a joint check be made of the Carrier's records to determine date of violations. (Carrier's Case No. 12.56 ORT)
EMPLOYES' STATEMENT OF FACTS: There is in full force and effect a collective bargaining Agreement effective July 1, 1944, entered in by and between The Delaware and Hudson Railroad Corporation, hereinafter referred to as Carrier or Management, and The Order of Railroad Telegraphers, hereinafter referred to as Telegraphers or Employes. The Agreement is, by reference, included in this submission as though copied herein word for word.
There are submitted herein three separate disputes which were handled on the property in the usual manner through the highest officer designated by Carrier to handle such claims. The claims were denied by the highest officer and remain unadjusted disputes. This Division, under the provisions of the Railway Labor Act, as amended, has jurisdiction of the parties and the subject matter.
For convenience we shall designate in the Statement of Facts the four disputes as Cases Nos. 1, 2, 3, and 4, and identify each in accordance with numbered paragraphs of the Statement of Claim.
This dispute involves the handling of a train order by Conductor J. E. Coates on April 4, 1956 at North Creek, N. Y.
Since the facts in regard thereto are fully set forth in the claim filed on May 30, 1956, by Local Chairman Stah, we herewith present the claim verbatim:
Claims are not supported by agreement rules and practices thereunder and carrier respectfully requests that they be denied.
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.
OPINION OF BOARD: In the submission the claims identified in items (1) thru (6) involve the situation where an employe not covered by the 10914-33 191
Telegraphers' Agreement copied train orders at a point where an AgentTelegrapher was regularly employed, but at a time when the Agent-Telegrapher was not on duty. It is asserted that Article No. 23-Handling Train Orders-has thus been violated. The Article appears in full in the submission.
The issue presented in these claims has been before the Division a number of times. Awards 8260, 9204 (item 5) 10241, 10243, 10526. In these awards the facts are similar, the parties are the same and the same rule is involved as in these claims (1-6). Such prior awards become controlling and we must, therefore, find that in claims 1-6, inclusive, that the Carrier violated the AgTeement and a sustaining claim as to these items will be allowed.
The Carrier argues that this amounts to nothing more than a fishing expedition. Prior awards involving the same parties in which this question was presented have been cited. In Award 8657, Int. Serial No. 189, the request was for a joint check to determine specific dates when the violation asserted in the claim took place. In the interpretation of the award the Division said
. . The Carrier was required to permit a joint check of records to determine if there were subsequent dates when Claimant J. Al. Parkis was deprived of work in the same way in contravention of the agreement". In Award 9343 the request was for a joint check ". . . to determine violations, if any, occurring at Castleton, Vermont, subsequent to dates above set out". The Division denied this request because it had not been handled on the property and no rule supported the request.
There are many awards of this Division where a joint check has been directed to ascertain dates or names but in all such instances the joint check was merely to obtain readily available information relating to the specific dispute before the Division. The check was not for the purpose of developing new claims. In Award 8657 the request was for a check to develop subsequent dates of the same violation. But here we have a request for a check of dates "should this type of violation" be continued. To give effect to this request would require this Division to determine in advance the merit of possible claims of "this type" without the necessity of them being handled in the usual manner on the property as required by the Railway Labor Act. We are not dealing here with a request to ascertain dates of a continuing claim, but instead are asked to determine now "this type" of claim that might be discovered. Furthermore, this request (item 7) is so similar to that disposed of in Award 9343 that such award should control here. This, therefore should be denied.
In items 8, 9 and 10, there are claims for a call under Article 3 of the current Agreement. It is alleged that the Carrier violated the Agreement when a Train Dispatcher, not covered by the Telegraphers' Agreement, handled train orders at a point where Telegraphers were ready and available to do the work but were not called. It is contended by the Carrier that Article 23(a) specifically authorizes the handling of train orders by Train Dispatchers. This issue has been before this Division a number of times and the contention here made has been found adverse to the Organization. See Awards 9217, 9914 and 10672. No useful purpose would be served by re-examining the basis for 10914-34 192
the findings expressed in these awards. It is sufficient to say that they are well reasoned, and are persuasive here. Accordingly, items 8, 9 and 10 should be denied.
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 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 Agreement was violated in part and not violated in part as indicated in the Opinion.
Items 1, 2, 3, 4, 5 and 6 are sustained, Item 7 is denied, Items 8, 9 and 10 are denied.