THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Pacific Company (Pacific Lines) that:
EMPLOYES' STATEMENT OF FACTS: The agreements between the parties are available to your Board and by this reference are made a part hereof.
Cosgrave (the point of the violation) is located at Mile Post 397.0; Imlay is located at Mile Post 384.1; Sparks at Mile Post 246.2. Normally, there is double track (two main tracks) operation between Imlay on the west and Rose Creek on the east, approximately 23 miles with single track (one main track) operation west of Imlay and east of Rose Creek. The instant dispute is concerned with the operation between Cosgrave on the east and Imlay on the west. On the date involved in this claim the eastward main track between these points was ordered out of service in order to facilitate the laying of new rail in this territory. The westward main track between Imlay and Cosgrave was to be used as a single track on these dates. Thus, on August 15, 16, 17, and 20, 1956, during the hours the steel gang was working on the eastward main track, we had an operation between Imlay and
The carrier reserves the right, if and when it is furnished with the submission which has been or will be filed ex parte by the petitioner in this case, to make such further answer as may be necessary in relation to all allegations and claims as may be advanced by the petitioner in such submission, which cannot be forecast by the carrier at this time and have not been answered in this, the carrier's initial submission.
OPINION OF BOARD: The Carrier operated double track between Imlay on the west and Cosgrave, Nevada, on the east. New rail was being installed on the eastbound track and it was out of service so that the double track was being single tracked on the normally westbound track. Carrier stationed 2 conductors at Cosgrave who performed block operator work in connection with the abnormal movement of trains between there and Imlay. The conductors were not in charge of a train and Carrier refers to them as conductor Ragmen.
It is not disputed that the conductors were required to and did OS all trains to the train dispatcher at Sparks, Nevada. This obviously was to insure that opposing trains would not be on the single track at the same time. The conductors stopped and held the westbound trains at Cosgrave until an eastbound train has passed. Then they OSed the eastbound train and permitted the westbound to go on to Imlay. These messages to the train dispatcher were relayed by him to the operator at Imlay. It was a block operation performed by the Conductors at Cosgrave.
Carrier contends that telegraphers have never heretofore performed such work, under such circumstances on this Carrier's property and cites as proof its Exhibit "C" which was the disposition of a claim involving a different issue than one here. There is no proof in this record supporting the contention.
Furthermore Carrier says the listing of "Block Operator" in the Scope Rule did not reserve to telegraphers the work involved here. There was no operator located at Cosgrave.
The same contentions of Carrier were presented in Awards 8263 and 8264 (McCoy) both dated March 10, 1958. This Board held in those two very similar cases that the true issue was whether the method used was a block operation and if so, then the OSing of trains to the dispatcher was work under the contract belonging to the telegraphers. There was no operator located where the calls were made in those cases. Indeed the conductors there used portable telephones which they cut into the dispatcher's wire. The reasoning in Awards 8263 and 8264 seems sound. We adopt and follow those awards.
The Conductors Organization is not an indispensible party to this dispute It was given notice and declined to take part herein. See Awards 8263 and 8264.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and 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;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
CARRIER MEMBERS' DISSENT TO AWARD 11722
DOCKET TE-10093
The statements as to the basic facts appearing in the Opinion of Board' are categorically contradicted by the record, and the conclusion that a sustaining Award in this case is dictated by Awards 8263 and 8264 is manifestly absurd, for the controlling rule laid down in those cases clearly requires denial of this claim.
The only conduct of the conductors at Cosgrave placed in issue by the Statement of Claim is telephoning of information to the dispatcher, and with respect to that telephoning, this obviously erroneous finding is made in the Award as a factual basis for sustaining the claim: 11722-18 808
This finding is diametrically opposed to the facts of record. At page 25 of ,the record Carrier tells us that:
Petitioner submitted no evidence and did not even deny the truth of the last-quoted sentence. The telephoning of the Conductors had no bearing whatever on the operation of opposing trains, but was in lieu of flagging and train protection work which otherwise may have been required of trainmen in connection with eastbound trains closely following each other.
The decision flies directly in the face of the Awards that are cited as its only support. It is said:
While it is believed that the majority in Awards 8263, 8264 (McCoy) failed to properly evaluate the evidence, they applied a sound rule which is stated as follows in Award 8263, cited in Award 8264:
In both Award 8263 and 8264 conductors admittedly handled by telephone many communications which controlled the operation and movements of trains through a restricted area, and this was the fact which the Board expressly held to be controlling. In Award 8263, the same paragraph from which we have quoted above, it is stated that:
There is not a scintilla of evidence in the entire record tending to establish that the conductors at Cosgrove handled by telephone any communication that controlled the movement of any train (for a definition of a communication or "order" that controls train movements, as distinguished from mere information furnished by an employe in train service to an individual who is in control of train movements, see Atchison, T. & S. F. By. Co. v. United States, 269 U.S. 268). Neither is there a scintilla of evidence in the entire record tending to show that the mere telephoning of information which the conductors did at Cosgrave has been handled by Telegraphers exclusively in the past. To the contrary, Carrier's repeated assertions in the record that such telephoning in the past has been consistently handled by other employes are not refuted. It is therefore obvious that the rule applied by this Board in Awards 8263, 8264 requires that this claim be denied.
For the reasons stated, and others which are equally obvious from a study of the record, we dissent.