NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
David Dolniek, Referee
PARTIES TO DISPUTE:
THE ORDER OF RAILROAD TELEGRAPHERS
CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of The
Order of Railroad Telegraphers on the Chicago, Burlington and Quincy
Railroad that:
1. Carrier violated the agreement between the parties when,
on May 18, 1957, at Burgess Junction, Illinois, it required or permitted an employe not covered by the agreement to handle (receive,
copy and deliver) a train order.
2. Carrier shall compensate Mrs. V. L. Pittard, senior idle
extra employe on the seniority district, in the amount of $16.93, a
day's pay.
EMPLOYES' STATEMENT OF FACTS:
The agreements between the
parties are available to your Board and by this reference are made a part
hereof.
Burgess Junction, Illinois is a station on the Aurora Division of this
Carrier's lines. There are no positions under the Telegraphers' Agreement
at this station.
On May 18, 1957, at Burgess Junction, Illinois, with no emergency condition existing, Engineer Fuska of Extra 311 East, by use of telephone,
received and copied from the train dispatcher the following train order:
"Train Order No. 6
May 18, 1957
TO C&E Extra 311 East AT Burgess Jet
No 86 has arrived at Burgess Jet
A E S
Made Complete 545 AM
Fuska OPR."
[694]
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The Carrier respectfully asserts that all data herein and herewith submitted have previously been presented to the Employes.
OPINION OF BOARD:
No telegrapher's position at Burgess Junction,
Illinois, is covered under the Agreement. None has ever been employed
there. There is no office or station at Burgess Junction. A register book is
maintained at the junction in which trainmen register the time a train passes
the junction to inform other train crews.
On May 18, 1957 the train crew on Train No. 86 failed to register the
time it passed Burgess Junction. When Extra Train No. 311 arrived at
the junction it became necessary for that crew to ascertain if Train No. 86
had passed. The Engineer of Extra Train No. 311 telephoned the train
dispatcher and copied the following train order check:
"Train Order No. 6
May 18, 1957
TO C&E Extra 311 East AT Burgess Jet
No 86 has arrived at Burgess Jet
A E S
Made Complete 545 AM Fuska OPR."
Petitioner contends that Carrier violated the Mediation Agreement dated
December 8, 1938 and the Scope Rule of the Agreement. The
handling of
train orders, Petitioner argues, is reserved to employes covered by the Agreement.
The Mediation Agreement of December 8, 1938 reads as follows:
"MEDIATION AGREEMENT
It is mutually agreed that the dispute, National Mediation Board
Case A-546, jointly submitted to mediation by representatives of
The Chicago, Burlington & Quincy Railroad Company, Brotherhood
of Locomotive Engineers, Brotherhood of Locomotive Firemen and
Enginemen, The Order of Railroad Telegraphers and The American Train Dispatchers' Association (the last-named six organizations
representing employes of the carrier) is hereby disposed of as follows:
(1) At points where telegraphers are employed, train dispatchers will not be required nor permitted to transmit train orders
or handle block by telephone or telegraph direct to train and engine
service employes except in emergency; nor will train and engine
service employes be required or permitted to call dispatcher or a
telegrapher at another station for the purpose of taking train orders
or to block trains except in emergency.
(2) At points where there is no telegrapher employed, train
and engine service employes will not be required nor permitted to
block trains; and, other than as provided for in Rule 54 of Conductors' and Trainmen's schedules, will not be required or permitted
to copy train orders except in emergency.
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(3) It is further understood and agreed that:
la) telephone conversation about work, and
(b) telephone conversation about probable arriving time of trains, and
(c) at junction points and spur tracks where
telegraphers are not now employed, telephone check on overdue trains.
will not be construed as a violation of this agreement.
NOTE: Emergency is defined as follows:-Storms, fogs,
casualties, accidents; obstructions caused by wrecks, washouts, high
water, slides and snow blockades; unusual delay due to failure of
fixed signal to clear; unusual delay to trains due to hot boxes, engine
or other equipment failures, and break-in-twos, or other unforseen
situations where life or property may be in jeopardy, requiring immediate attention, which could not have been anticipated when train
was at previous telegraph office and which would result in serious
delay to trains.
This agreement shall become effective as of January 1, 1939,
and remain in effect until changed in accordance with the provisions of Section 6, Railway Labor Act.
Signed at Chicago, Illinois, the 8th day of December, 1938."
Some time in the early part of 1948 a question arose about the meaning and intent of the Mediation Agreement above referred to, particularly
Section 3 thereof. A conference was held on February 27, 1948 between
this Carrier and the General Chairmen of the Organizations who are parties
to that Mediation Agreement. On March 6, 1948 Carrier wrote to all of the
General Chairmen confirming the discussion and the agreement reached
at the conference on February 27. This letter reads as follows:
"March 6, 1948
A-546
Mr. C. H. Atkins, General Chairman, BLE, Chicago
Mr. V. E. Secrest, General Chairman, BLF&E, Chicago
Mr. F. L. Smith, General Chairman, ORC, St. Joseph
Mr. V. R. Roberts, General Chairman, BRT, Creston
Mr. C. A. Smith, General Chairman, ORT, Chicago
Mr. J. W. Frey, General Chairman, ATDA, Lincoln
Gentlemen:
Please be referred to correspondence originating with my letter
of February 9, 1948, and to discussion at conference on February
27, 1948, in reference to the provisions of Mediation Agreement
A-546.
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At the conference referred to in the preceding paragraph, I
stated to you that the Management is sincerely interested in reaching an understanding with representatives of the parties to this
Mediation Agreement which will, insofar as it may be possible,
eliminate cause for misunderstanding, thus affording opportunity
for almost complete compliance with its terms. At the outset there
appeared to be some slight misunderstanding relative to the proper
interpretation to be placed upon the provisions of Section 3(c) of
said agreement which reads:
'It is further understood and agreed that:
(c) at junction points and spur tracks where telegraphers
are not now employed, telephone check on overdue
trains
will not be construed as a violation of this agreement'
In answer to a direct question, Mr. C. A. Smith stated that
shortly after the effective date of this Mediation Agreement a
question arose as to the propriety of requiring or permitting other
than telegraphers to copy a train order check of the register at the
points referred to in the above-quoted provision. Mr. Smith further
stated that he discussed this question with a Vice President of The
Order of Railroad Telegraphers who agreed that such service would
not be in violation of the purpose and intent of this particular provision. A poll of those present indicated that Mr. F. L. Smith, Mr.
J. W. Frey, Mr. A. B. Coats and Mr. V. R. Roberts concurred in the
interpretation which had been expressed by Mr. C. A. Smith. Mr.
C. H. Atkins expressed a contrary opinion and Mr. V. E. Secrest,
according to our records, had little or nothing to say. This is
probably because it would indeed be a rare occurrence for a locomotive fireman to copy a train order of any kind.
The second point under discussion involved the interpretation
of the `Note' which, in fact, is an interpretation of the substance of
the agreement. This question is resolved to the intent of the parties
in applying that part of the agreement dealing with emergenciesmore specifically-whether the delay encountered is limited to the
train manned by the individual (conductor or engineer) who is
required to copy a train order or whether it w:u the intention to
permit a conductor or engineer to copy a train order which will
permit moving of their train which is delayed as a result of some
other train suffering unusual delay as a result of any one of the
incidents referred to in the `Note'. After some discussion, our records indicate that all of those present were in agreement that a
conductor or engineer may be required to copy a train order, even
though an opposing train is involved in one of the incidents more
specifically covered in the `Note'.
We appreciate your willingness to frankly and openly discuss
these problems and we stated that we would make a matter of record
our understanding of what took place at the conference. We further
stated that this information would be communicated to you and if
it later develops that all of the parties concur in what we have
recorded herein and will so advise, we will then undertake to draft
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instructions to interested officers in an endeavor to bring about a
condition which will eliminate or largely minimize cause for further
complaint. We request, therefore, that you consider the content of
this letter and advise your reaction thereto.
Yours truly,
/s/ J. E. WOLFE"
On March 31, 1948 Petitioner's General Chairman, who was at the conference on February 27, 1948, wrote to Carrier as follows:
"March 31, 1948
Mr.
J. E. Wolfe,
Assistant To Vice President,
Chicago, Burlington & Quincy RR,
547 West Jackson Boulevard,
Chicago 6, Illinois.
Dear Sir:
In acknowledgement of your letter of March 6, addressed jointly
to All General Chairmen of the organizations parties to Mediation
Agreement A-546, having reference to exchange of correspondence
and to discussion at conference on February 27, 1948, concerning
the provisions of Mediation Agreement A-546.
According to my notes, as made at the conference, it is my
understanding that you were to write the General Chairmen jointly
along with which you would submit a tentative set of instructions
to the interested officers outlining the procedure to be followed in
applying the provisions of Mediation Agreement A-546 subject to
our approval and that you would convene the General Chairmen
for further consideration of such instructions before they are issued.
Yours truly,
/s/ C. A. Smith
General Chairman, O.R.T."
Petitioner argues that these letters are, at best, only evidence of' n
alleged interpretation and since they were not presented and considered on.
the property they may not now be considered by the Board.
The record does not disclose the correspondence exchanged nor the
subject of any conference held on the property before this claim was filed
with this Board. It is unfortunate that the record is so incomplete. We may
not go beyond that record and assume that the letters were not considered
on this property.
It is true that, generally, matters raised for the first time on appeal to
this Board may not be considered. This does not apply to Agreements and
agreed interpretations of such Agreements. Both parties are charged with
full knowledge of applicable rules, agreements and interpretations. These
are always proper for Board consideration whether they were or were not
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specifically presented and discussed on the property. When a claim is based
upon a violation of an agreement, such as here, we are obligated to consider
not only that agreement, but any others which give meaning and intent to
the specific applicable rules or sections. The letters referred to are such
agreements. They were written after a conference on the interpretation
of the applicable Agreement. Petitioner nowhere denies the substance of
the interpretation set out in Carrier's letter of March 6, 1948. For all
intents and purposes the letters represent an agreement between the parties
on the interpretation of the Mediation Agreement of December 8, 1938. As
such they must be considered by this Board even though they were not presented and considered on the property.
Carrier in the letter of 2darch 6, 1948, above quoted, said:
"In answer to a direct question, Mr. C. A. Smith stated that
shortly after the effective date of this Mediation Agreement a question arose as to the propriety of requiring or permitting other than
telegraphers to copy a train order check of the register at the points
referred to in the above-quoted provision. Mr. Smith further stated
that he discussed this question with a Vice President of The Order
of Railroad Telegraphers who agreed that such service would not be
in violation of the purpose and intent of this particular provision."
(emphasis added)
This fact, Petitioner does not deny.
The reason for Petitioner's agreement to the interpretation of the
Mediation Agreement is understandable. It is consistent with Carrier's
Operating Rule 83 (b) which reads as follows:
"83 (b) Whenever a train or engine requires check of overdue
trains in meeting the .requirements of Rules S-83 and D-83 at a
junction or at a spur track where operators are not now employed,
check of overdue trains transmitted by telephone must be copied by
conductor, yard foreman or engineman as required by Rule 905 and
must be written upon Form 19 train order."
'The train order involved in this dispute was a check of an overdue train.
It was handled by an engineer at a junction where no telegrapher was employed. The agreement reached at the conference on February 27, 1948
and Carrier's Operating Rule 83(b) contemplate that such a train order
check is not a violation of the Agreement or of the Mediation Agreement.
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.
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AWARD
Claim is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 26th day of July 1963.