NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Martin 1. 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 Pacific 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 October 26, 1960; compensate Mr. V. E. Anderson one day's
compensation at the rate applicable to trick train dispatcher for
each of the following dates: September 14, September 21, October 5,
October 12, October 19 and November 2, 1960, and compensate Mr.
J. H. Fry one day's compensation at the rate applicable to trick
train dispatcher for September 28, 1960, on which dates they were
deprived of work to which they were 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.
[819]
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843
"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:
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.
11414-26
g¢4
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.