NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Martin I. Rose, Referee
PARTIES TO DISPUTE:
AMERICAN TRAIN DISPATCHERS ASSOCIATION
MISSOURI PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the American Train Dispatchers
Association that:
(a) The Missouri Paefic Railroad Company, hereinafter referred
to as "the Carrier", violated the currently effective agreement between the parties, Article 3(b) specifically, when it declined and
continues to decline to regularly assign a relief train dispatcher
and compensate, him in accordance with the provisions of Article 3 (b)
in its train dispatching office at Wichita. Kansas, where relief requirements regularly necessitate four (4) days' relief service per
week.
(b) The Carrier shall now compensate Mr. J. H. Simpson one
day's compensation at the rate applicable to trick train dispatcher
for each of the following dates: July 13, July 20, July 27, August 31,
and September 7, 1960, on which dates he was deprived of work to
which he was contractually entitled under the agreement.
EMPLOYES' STATEMENT OF FACTS:
There is in effect an agreement
between the parties to this dispute effective August 1, 1945, reprinted March 1,
1955, and subsequently amended. A copy of this agreement and subsequent
amendments are on file with your Honorable Board and by this reference are
made a part of this submission as though they were fully set out herein.
The agreement rules particularly pertinent to this dispute are quoted here
for ready reference.
"Article 1
"(a) Scope
This agreement shall govern the hours of service and working
conditions of train dispatchers. The term 'train dispatcher,' as hereinafter used, shall include Assistant Chief, trick, relief and extra train
dispatchers. It is agreed that one Chief Dispatcher (now titled Division Trainmaster on this property) in each dispatching office shall
be excepted from the scope and provisions of this agreement."
"Article 3
"(a) Rest Days
(Effective September 1, 1949)
[770]
11412-23
792
susceptible of two interpretations one of which is consistent with the.
practice (Awards 4366, 3194, 3002, 2466, 2278, 1609, 1178. 945, 213 and
72) or when the agreement is indefinite, * * *. These are not hardand-fast rules but rather established means of ascertaining the intention of the parties to a contract for the purpose of determining its
meaning."
Award No. 5416-Referee Parker.
"In such a situation (dispute as to agreement coverage) we have
repeatedly held intention of the parties, to be determined by recourse
to custom, practice and other indicia of their understanding, is the
decisive factor.
* * * * *
"The fact, if it is a fact, as the Organization charges, that it did
not know of the custom and practice in question affords no sound
ground for a contrary conclusion."
Award No. 7955-Referee Cluster.
"The basic issue is whether it can be said that the scope rule,
which does not describe any work but merely lists positions, was intended to cover the kind of work here involved. In order to determine
this, it is necessary to look to custom and practice."
We respectfully submit that it has never been the practice on this Carrier
to include the filling of temporary vacancies on positions of Chief Train Dispatcher in rest day relief service subject to Article 3 (b), whether such temporary vacancies occurred on the day the Chief Train Dispatcher was required
to take one regularly assigned day off per week, or not. Neither has it been the
practice to include the filling of temporary vacancies on positions of dispatchers
covered by the Dispatchers' Agreement in rest day relief service subject to
Article 3 (b), whether such temporary vacancies occurred on the day a trick
dispatcher was taken from his regularly assigned position to work on a position of Chief Train Dispatcher because the Chief Train Dispatcher had been
required to take one of his regularly assigned days off, or otherwise.
Accordingly, no support for the "Johnny-come-lately" position of the
Organization can be found in the recognized practice on this property long
known to both parties to the instant dispute.
For the reasons fully set forth in this submission, there is no basis for the
instant claim, and it must therefore be denied.
All matters contained herein have been the subject of discussion in conference or through correspondence between the parties hereto on the property.
(Exhibits not reproduced.)
OPINION OF BOARD:
The parties agreed at the Referee Hearing that
the issue presented for determination by this claim is the same as the issue
raised in Award 11407. Consequently, and for the reasons stated in that award,
this claim must also be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and
all the evidence, finds and holds:
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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
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 22nd day of May 1963.