C:\AWARDS\OUT\3-12017.htm

Award No. 12017 Docket No. TE-10987

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

(Supplemental)

William N. Christian, Referee

PARTIES TO DISPUTE:

THE ORDER OF RAILROAD TELEGRAPHERS

THE DELAWARE AND HUDSON RAILROAD CORP.

STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Delaware and Hudson Railroad, that:

1. Carrier violated the Telegraphers' Agreement when commencing on July 5 1957 it created a position at South Junction, New York and permitted or required employes not coming under the scope of the Agreement to handle (receive, copy and deliver) train orders Mondays through Fridays.

2. Carrier shall now compensate the senior available telegrapher or telephoner, extra in preference, eight hours at the applicable rate, on a day-to-day basis, and that a joint check of the records be made in determining the payees.

EMPLOYES' STATEMENT OF FACTS: There is in full force and effect a collective bargaining Agreement entered into by and between The Delaware and Hudson Railroad Corporation, hereinafter referred to as Carrier or Management, and The Order of Railroad Telegraphers, hereinafter referred to as Employes or Telegraphers. The Agreement was effective April 1, 1957 and is on file with this Division. The Agreement is, by reference, made a part of this submission as though set out herein word for word.

The dispute submitted herein was handled on the property through the highest officer designated by Carrier to handle such disputes and failed of adjustment. The dispute is submitted to this Division under the provisions of the Railway Labor Act, as amended and this Division of the National Railroad Adjustment Board has jurisdiction of the parties and the subject matter in accordance with the provisions of said Act.

This dispute involves violation of the Agreement in permitting an employe not covered by the Telegraphers' Agreement to handle train orders at South Junction or in the vicinity of said point on July 5, 1957 and other dates thereafter. Article 23(A) of the Agreement provides:

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tions where no member of the craft is employed, they may be handled by other employes."

Award 6863 was discussed by the negotiators prior to arriving at agreement on Article No. 23 of the April 1, 1957 Agreement, and it was clearly understood that the interpretation placed on the B&M train order rule in Award 6863, insofar as handling train orders where telegraphers were not employed, would be the accepted application of the same rule in the D&H Agreement effective April 1, 1957.

In addition, it is desired to call particular attention to the train order rule proposed by the employes on February 3, 1955, particularly paragraph (c). It will be noted that this proposed rule, if it had been accepted, would apply to handling train orders at points where telegraphers were not employed. No such rule was agreed to. The train order rule which was agreed to was already interpreted in Award 6863 as not applying where telegraphers were not employed, and such interpretation was clearly understood by the negotiators of the present train order rule.

Insofar as handling train orders where telegraphers are not employed, it has always been the practice for other than telegraphers to handle such train orders, without claim or protest from telegraphers until late in 1954. Attached are several statements, marked Exhibits A to J, attesting to this practice of handling train orders. Several claims of telegraphers presented since 1954 are now pending before the Third Division under the previous agreement. Two such claims have been decided by the Third Division in Awards 8037 and 8038, and the contentions of the employes rejected.

Regardless of previous disputes as to the exclusive right of telegraphers to handle train orders at points where telegraphers were not employed, the train order rule effective April 1, 1957, was agreed to with both parties having full knowledge of the interpretation placed upon this exact rule by this Division of the Board in Award 6863 and such interpretation of this rule was accepted by both parties.

Without agreeing that there is any basis for sustaining the claims made in this case, if for any reason the Board finds that they should be sustained, the penalty assessed should be no more than a call under the provisions of Article 14 A for each of the seven (7) alleged violations for which available claimants have been named, as specifically outlined in the General Chairman's original presentation of the claim to Mr. P. W. Young, Superintendent, on July 22, 1957. As stated, the claim in favor of O. C. Ladue for July 18, 1957 is not in order account claimant not available, and any further specific claims, extending beyond July 19, 1957, are not properly before the Board inasmuch as they have not been properly handled on the property.

Claims are not supported by agreement rules and carrier respectfully requests that they be denied.

Management affirmatively states that all matters referred to in the foregoing have been discussed with the committee and made a part of the particular question in dispute.

(Exhibits not reproduced.)

OPINION OF BOARD: The issues herein are the same as in Docket No. 10541, Award No. 12015, and we adopt the opinion therein as determinative of the issues in the confronting claim.

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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 19th day of December 1963.