Award No. 11420
Docket No. TD-12951.
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 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 Osawatomie, Kansas, where relief requirements regularly necessitate four (4) days' relief service per
week.
(b) The Carrier shall now compensate Mr. F. J. Howell one day's
compensation at the rate applicable to trick train dispatcher for each
of the following dates: September 13, September 20, November 1 and
November S, 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
[975]
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ceptible 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
hard-and-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.
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999
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.
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.