THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Toledo, Peoria and Western Railroad, that
EMPLOYES' STATEMENT OF FACTS: R. B. Westfall is the regular assigned agent at Hamilton, Illinois, on August 16, 1956. His assigned hours are 8:00 A. M. to 5:00 P. M. He is the sole employe covered by the agreement.
On July 16, 1956, and each day thereafter, prior to 5:00 P. M., the dispatcher gave agent Westfall train orders, clearance cards, and work instructions while he was on duty at Hamilton. The train orders applied to Train No. 120, which was due at Hamilton at 6:554 P. M. daily. The dispatcher understood that agent Westfall would not be on duty at the time that the train orders had to be delivered to the train No. 120. In view of this fact, agent Westfall was instructed to hang the train orders and messages in a train order rack at his station before 5:00 P. M. The train orders, messages and clearance cards were unattended from the time that agent Westfall went off duty at 5:00 P. M. or earlier on Sundays to the time the train picked them up.
Agent Westfall could have been notified before 5:00 P. M. that he would have to remain at the station until No. 120 departed or the Carrier could have called him at his home where he has a telephone and required him to return to Hamilton Station to handle train orders for No. 120.
A claim was made in behalf of R. B. Westfall for a three hour call pro rata rate for each day that the violation occurred. The claim was handled
The provisions of this rule were first placed in the Agreement of August 29, 1947, and were not changed when the Agreement was revised on September 30, 1953.
At the time this Rule was first placed in the Agreement, April 29, 1947, it was the custom and practice and had always been the custom and practice to make delivery of train orders and clearance cards received from the train dispatcher by placing them on the train register or in a waybill box. The Employes were fully familiar with this custom and practice. (See Carrier's Exhibits B, C, D and E.)
This custom and practice has continued to this day, with the use of the train order rack starting on or about 1949 in lieu of placing them on a train register or in a waybill box, to avoid stopping the train and the consequent delay thereto. Furthermore, telegraphers commonly place train orders on the train register during their tour of duty where they are picked up by conductors while the telegraphers are engaged in other duties. Also, telegraphers commonly (daily) place train orders and clearance cards in train order racks during their regular tour of duty from where they are picked up by the train to which addressed, while the telegraphers are engaged in other duties; similarly, telegraphers commonly (daily) place train orders and clearance card in train order racks, to be picked up by the train to which addressed, after their tour of duty.
This is and always has been the usual and accepted custom and practice on this property. No detail in the handling of train orders is delegated to employes outside the Scope of the Telegraphers' Agreement.
Here, we have the situation where certain work, sometimes performed by a telegrapher when he was on duty, completely eliminated by the mechanical handling. And, the Telegraphers have contended at no time that the delivery of train orders by means of this mechanical device was improper.
All data herein submitted has been made known to, and fully discussed in conference, with Employes' Representatives and is made a part of the particular question in dispute.
OPINION OF BOARD: It has been agreed between the parties that the principles and facts involved in this present controversy are identical to those involved in a recent Award 11473 (Moore) between these same parties and involving the same property. Carrier insists that Award 11473 is a precedent award controlling this dispute and binding on the Board. To the contrary, the Petitioner, though admitting the existence of the award, contends that Award 11473 is not binding on the Board, as it is palpably erroneous. The Board, as a consequence, finds itself in the position of having to consider the stability or instability of the award as a precedent. 11653-13 880
The subject with which we are concerned in this type of dispute has been presented to this Board on many occasions, commencing with Award 86, and continuing down through many awards since then, including several in which the facts are practically identical to ours.
In Award 11473, the Board, in denying the claims of the employes, relied principally on Award 8327 (McCoy) and Award 10917 (Boyd). In Award 8327 it appears there was a departure from the holdings of many prior awards. The Opinion in that award rested, primarily, on the premise that "no human hand had intervened between the telegrapher and the train crew to whom the order was addressed." In support of the Opinion expressed in Award 8327, the Referee cited prior Award 1821 (Yeager) and Award 7343 (Coffey). In Award 1821, which was, also, in opposition to the prior awards of this Division, we note the following:
Nowhere in the Opinion is it indicated what the fallacious premise was. In a later Award 5872 (Yeager), the same Referee, though only the Scope Rule was involved, which did, however, include employes who are required to handle train orders, and under facts similar to those involved here, rendered a sustaining award in favor of the employes. In Award 9319 (Johnson) we find the following comment:
In Award 7343, the other Award relied upon in Award 8327 we find upon examination that it neither involves a train order rule nor is a train order rule ever mentioned. What the Board was there concerned with was a general Scope Rule reserving to the persons covered, all work which by custom, tradition and historical practice had become identified as work of the class. Thus, we find the only support for Award 8327 is Award 1821, which was reversed in a later award by the same Referee who wrote the Opinion in Award 1821.
Let us then turn to a consideration of Award 10917 (Boyd) which has been cited by the Referee in Award 11473 in support of his position. The query presented to the Board was whether Award 10400 (Mitchell) was palpably wrong and should be avoided as a precedent. It was stated in Award 10400:
From an analysis of these prior awards we are forced to a conclusion that the only award that can be claimed as supporting Award 11473 is Award 8327. 11653-14 881
It is the Petitioner's contention in this controversy that to handle train orders contemplates receiving, copying and delivering them to the train crews which are to execute them and that what is contemplated is personal delivery of the same to the train crews by the operator. Petitioner's position has been supported by the following awards, in many of which the facts are identical to those now before us: Awards 86, 709, 1166, 1169, 1170, 1422, 1680, 1713, 1878, 1879, 2087, 2926, 2927, 2928, 2929, 2930, 3611, 3612, 3670, 4057, 5087, 5122, 5872, 9319, 10239.
"The rule is quite clear and requires no unusual interpretation. Doubtlessly, it was made for the purpose of preventing encroachments upon that work to which the employes in that particular craft were entitled."
"We think the phrase `to handle train orders' contemplates receiving, copying and delivering them to the train crews which are to execute them. Awards Nos. 86, 1166, 1713, 1878 and 1879. That the proper interpretation of this rule has been given the most serious consideration by this Board is evidenced by the many vigorous dissents filed by the Carrier Members. The phrase, however, has been interpreted as we have herein stated in so many awards by so many learned referees, that it must be accepted as a meaning to be generally applied in all collective agreements arising under the Railway Labor Act in which the words appear. Unless such an interpretation so generally established by the awards of this Division are to be accepted and applied in the adjustment of disputes arising out of Rule 1 (b) and similar rules, the purpose of the Railway Labor Act will be seriously restricted. A time should come when matters of this kind should be considered as finally settled until such time, at least, as they are changed by negotiation or mediation. We think that time has come irrespective of the wide differences of opinion between the carriers and the organizations with reference thereto."
The cogent reasoning expressed in the foregoing statement is applicable to the problem presented to us here. It is our Opinion that Award 11473 is plainly in error in failing to follow the overwhelming majority of awards in this Division on the subject presented. We do this in furtherance of maintaining consistency in the awards of this Division and so as to avoid conflict and confusion in them.
In accordance with the vast majority of awards rendered by this Division we believe the claims herein should be sustained.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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; 11653-15 882
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
With this Award 11653 we are confronted with two conflicting decisions between the same parties, involving the same issue, and the same rule of the effective agreement; i.e., Rule 1 (b)-
"The handling of train orders or blocking of trains at stations where an employe as per this rule is employed, will be confined to employes covered by this Agreement and train dispatchers, provided such employe is available and can be promptly located. When not called in conformity with this rule, the employe will be notified and paid for a call."
In the case covered by Award 11473, the claimant telegrapher at LaHarpe, Illinois, received, copied and delivered the train orders by placing them on the train register for the crews of the trains addressed. In the other case, the telegrapher at Hamilton, Illinois, received, copied and delivered the orders by placing them in the mechanical train order standard at his station, where they were received by the crew of the train without stopping. In both cases, the entire handling of the train orders was confined solely to the telegrapher on duty, and the evidence disclosed that on none of the dates involved did any employe not covered by the Telegraphers' Agreement handle train orders at either station.
Just prior to Award 11473, the last decision on this particular issue (the placing by claimant telegrapher of train orders in waybill box before going off duty) was Award 10917. There, the organization urged that Award 10400, between the same parties, was "palpably wrong" and should be ignored. We quote, for ready reference, the following paragraphs of the opinion in Award 10917:
"Is the decision or the opinion of the Board, or both, `palpably wrong'? That is, obviously wrong? A mere difference of opinion when there has been a long record of conflicting views on a particular question does not justify a conclusion on our part that a prior award was palpably wrong. After a careful study of many prior awards on this subject we have reached the conclusion that the decision was not 11653-16 883
Next came the case decided by Award 11473. The evidence of record in that case showed that there was no Telegraphers' Agreement in effect on the T. P. & W. until 1947, that it had long been the practice on that property for operators to attach orders to the train register where they were later picked up by the crews of trains, either while the operator was still on duty or after he had gone off duty, that this method of delivery was continued in effect, and that no claims arose until August, 1956. The agreement was revised in 1953, with no change in Rule 1 (b). It was the Board's duty and responsibility to decide whether or not Rule 1 (b) of the effective agreement was violated. Award 11473 plainly shows that the Majority very definitely considered the two lines of conflicting awards in reaching the decision:
In view of the foregoing, it is difficult to understand why the Majority ignored the evidence in Docket TE-10057 and the Board's findings in Award 11473 and elected instead "to consider the stability or instability of the award as a precedent." The opinion is based primarily on the Labor Member's Dissent to Award 11473. The errors of that dissent (followed by the Majority here) were fully pointed out and dealt with in "Carrier Members' Answer to Labor Member's Dissent to Award 11473, Docket TE-10198." Carrier's Answer will not be reproduced, but by reference is incorporated and made a part of this dissent.
The Majority disregarded, among other evidence in Docket TE-10057, the following affidavit (Carrier's Exhibit "E") by R. B. Westfall, who was named by the organization as the claimant in this case:
The Majority also overlooked other pertinent evidence which distinguished the two TP&W cases from the prior sustaining awards; i.e., that carrier's Operating Rule 211 had been changed and no longer required personal delivery of train orders. Carrier, in its submissions, cited and specifically relied on denial Award 7343 (Coffey), in which the Board said:
The Opinion in Award 11473 plainly shows that this distinguishing element was not overlooked by the Majority in their consideration of the case and review of prior awards. 11653-i8 885