NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Preston J. Moore, Referee
PARTIES TO DISPUTE:
ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN,
PULLMAN SYSTEM
THE PULLMAN COMPANY
STATEMENT OF CLAIM: The Order of Railway Conductors and
Brakemen. Pullman System, claims for and in behalf of Conductors J. D.
Scott and J. H. Hapeman, or their successors, of the Ohama District, that
The Pullman Company violated the Memorandum of Understanding Regarding Conductor and Optional Assignments, found on pages 83 and 84, current
Agreement. Also, Rules 25 and 64, when:
1. On October 29, 1960, conductors of the Omaha District
were removed from the conductor run on CB&Q Trains 43 and 42
between Lincoln and Alliance, Nebraska.
2. Because of this violation, the Organization now asks that
Conductors J. D. Scott and J. H. Hapeman, who were regularly
assigned to this run, be credited and paid in accordance with the
Memorandum of Understanding Concerning Compensation for Wage
Loss far each trip beginning October 29, 1960 and subsequent dates
that they are denied the right to operate in the conductor run on
CB&Q Trains 43 and 42 between Lincoln and Alliance.
3. The Organization further requests that the extra conductors of the Omaha District (record to be checked to determine which
conductors) who are entitled to perform the relief work in the
conductor operation on the above-mentioned trains subsequent to
October 29, 1960 be credited and paid for each trip that they are
denied the right to fill the relief in the above run.
Rules 33 and 31 are also involved.
EMPLOYES' STATEMENT OF FACTS:
1.
There is an Agreement between the parties, hearing the effective date of
September 21, 1957, and amendments thereto, on file with your Honorable
[1311
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Further, the claim in this dispute is faulty in that it does not confine the
case to Claimants Scott and Hapeman, who are identified, but attempts to
make unidentified conductors eligible for an adjustment in the event the
Organization secures a sustaining award.
CONCLUSION
The Pullman Company has shown in this ex parte submission on October
29, 1960, it exercised its right under Rule 64 (b) to discontinue operation
of conductors on the single car operation between Lincoln and Alliance on
CB&Q 42-43. The Company has shown that the operation discontinued on
October 29, 1960, was not a "frozen" operation covered by the Memorandum
of Understanding Regarding Conductor and Optional Assignments. Finally,
the Company has shown that it did not violate Rules 25, 64 or any other
rule of the working Agreement.
The claim is without merit and should be denied.
All data presented herein in support of the Company's position have
heretofore been presented in substance to the employes or their representatives and made a part of this dispute.
(Exhibits not reproduced.)
OPINION OF BOARD:
This is a dispute between the Order of Railroad
Conductors and Brakemen and The Pullman Company.
On October 29, 1900, conductors of the Omaha District were removed
from the conductors run on C B & Q Trains #43 and 42 between Lincoln
and Alliance, Nebraska. The Organization contends that this was a "frozen
run"; that the removal of the conductors from the run was a violation of the
Agreement.
The present dispute is squarely in point with Award #10578. As a
matter of fact, it concerns the same parties and the same line, and practically
the same route. We have searched the record carefully and can find no distinguishing factor between this dispute and the one involved therein. We
believe that the question of measure and damages was involved and that the
Claimants may only be entitled to the difference in what they have earned
and what they would have earned had they continued to operate on trains
.#43 and 42, between Lincoln and Alliance, Nebraska.
For the foregoing reasons we find that the Agreement was violated.
FINDINGS:
The Third Division of the Adjustment Board, upon the
whole record and all
the evidence, finds
and holds:
That the parties waived oral hearing
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
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164
That the Agreement was violated.
AWARD
Claim sustained.
NATIONAL
RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. 11. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 24th day of January 1963.
LABOR MEMBER'S DISSENT TO INCLUSION
OF
CERTAIN LANGUAGE
IN OPINION
OF
AWARD 11057, DOCKET PC-12623
The deletion of certain language was requested at adoption session and
had previously been requested in letter of January 4, 1963, as follows:
"January 4, 1963
"MEMORANDUM TO: Referee Moore
"This is to call to your attention a contradictory phrase in your
proposed Award in Docket PC-12623.
"It will be noted that Part 2 of the claim states:
`Because of this violation, the Organization now asks
that Conductors J. D. Scott and J. H. Hapeman, who were
regularly assigned to this run, be credited and paid in
accordance with the Memorandum of Understanding Concerning Compensation for Wage Loss for each trip beginning October 29, 1960 and subsequent dates that they are
denied the right to operate in the conductor run on CB&Q
Trains 43 and 42 between Lincoln and Alliance.'
"The Memorandum of Understanding Concerning Compensation
for Wage Loss (Page 99 of Collective Agreement) provides the
manner of payment in case claim is sustained.
"This Board may not change or amend the collective agreement
but only interpret it.
"The statement appearing on Page 2 of proposed Award, as
follows:
`We believe that the question of measure of damages
was involved and that the Claimants may only be entitled
to the difference in what they have earned and what they
would have earned had they continued to operate on
trains #43 and 42, between Lincoln and Alliance, Nebraska.'
"is, in addition to being contradictory to the provisions of the
Memorandum of Understanding Concerning Compensation for Wage
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165
Loss, also in conflict with the holdings in Award 10575 upon which
your decision is based. And is likewise contradictory to the findings
in Awards 10140, 10616, 10617, 10733, 10734 and 10745.
"In order to make this Award proper, it is therefore requested
that the contradictory phrase previously mentioned be deleted.
"This is to further call your attention to the fact that the
issue which you inserted by this language was not an issue in
this dispute, either on the property or during panel hearings and
is therefore dicta and improperly injected by you into this dispute.
"R. H. Hack
"cc f REElack"
Request for deletion of this language not having been granted, dissent
to its inclusion in the Award is appropriate.
/s/ R. H. Hack
R. H. Hack
Labor Member