NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Benjamin H. Wolf, Referee
EMPLOYES' STATEMENT OF FACTS: The agreements between the parties are available to your Board and by this reference are made a part hereof.
The instant dispute involves the handling of orders, in CTC (centralized traffic control) territory, issued by train dispatchers authorizing track motor cars to use a main track between specified locations during a specified period of time. These are sometime referred to as "track permits" or "track limit orders." The track limit orders are received by the employe in charge of a track motor car. A record is kept by the train dispatcher of all such orders issued; there is a dispute between the parties as to whether the track motor car operator makes a record of the order or trusts to his memory-this will be discussed later in this submission.
say that employes not covered by that agreement are "receiving and copying orders governing the use of main tracks."
Carrier has shown that such statement is erroneous. No orders are necessary. None are issued and none are copied. It is only necessary that the motor car operator receive verbal authority from the train dispatcher to make the desired movement, and the necessary protection is provided by the dispatcher through CTC machine without the necessity of written orders.
It is the position of the carrier that telegraphers do not have exclusive rights to the use of telephones, and that when track car operators secure verbal permission from train dispatchers to make movements in CTC territory, no provision of the telegraphers' agreement is violated. Furthermore, the last sentence of section 2(a), Appendix A, specifically extends to section foremen and other employes such as signalmen, track supervisors, etc., the right to communicate with train dispatchers by telephone in CTC territory. As before stated, in the discussion of this case on the property, attention of the employes was directed to Third Division Award 6825, wherein Referee Shake held that such telephone conversations, even though written, are not "communications of record in the sense that that term has been held to be decisive in determining whether telegraphers' work has been performed."
The claim of the employes is wholly lacking in merit, has no support under the agreement, and should be denied in its entirety.
OPINION OF BOARD: The facts are not in dispute. Track or motor cars have obtained permission by telephone from train controllers in Centralized Traffic Control territory without the use of telegraphers which the Petitioner claims to be a violation of its Agreement with the Carrier.
The Petitioner argues that the permits are essentially train orders which have traditionally been the work of telegraphers and therefore should be exclusively reserved to the telegraphers by reason of the Scope Rule of the Agreement, Rule 15, governing train orders, and Appendix A.
The decisions of this Board are in conflict as to whether these permits are train orders or not. If we were to consider them train orders, Appendix A, 3 (a) would apply.
The plain language of this quoted section permits the use of telephones in CTC territory if in compliance with the operating rules. The Petitioner, however, has raised two objections to this common sense interpretation. It says, first, that the "or" should be read in the conjunctive as "and", making the second phrase an extension of the first and thereby restricting its application to trainmen and enginemen. 1-2311--29 195
The Petitioner also argues that the only operating rules applicable are those that were in effect on April 1, 1945 when Appendix A was negotiated.
It is our opinion that the Petitioner urges a construction so narrow it would lead to absurdities. Under its construction, a trainman seeking information necessary for the progress of his train may use the telephone, but an operator of a motor car may not. The former use has consistently been held to be a train order, traditionally handled by telegraphers. It has, by Appendix A, been removed as telegraphers' work. The latter, on which the Board has had doubts that it is a train order, would become telegraphers' work if we adopted this narrow interpretation urged by the Petitioner.
It is our opinion that 3 (a) was not meant to be so narrowly interpreted. In bargaining away its rights to handle communications governing the movement of trains in CTC territory, the Petitioner surrendered a substantial right. It must have understood that telegraphers would be furloughed because they would not be needed. It is difficult to imagine that they intended that telegraphers be kept on to handle communications by motor car operators, while yielding on communications by trainmen and enginemen.
This absurd consequence is avoided if the "or" is read in the disjunctive as "or". The second phrase is then not an extension of the first, but a separate, distinct idea. This conclusion is buttressed by the fact that a semi-colon was used rather than a comma and that the phrase "the use of telephones" was repeated. It is our opinion that the use of telephones in the handling of train orders in CTC territory was not restricted to trainmen and enginemen, but was meant to apply to all personnel under the Operating Rules.
The second objection is that only those operating rules in effect prior to the adoption of Appendix A have pertinency under 3 (a). It follows, according to the Petitioner, that since Operating Rules 575, 576 and 577, governing the operation of track cars in CTC territory were adopted after Appendix A, they do not apply.
Again, the very narrow construction urged by the Petitioner would lead to absurd consequences. It would exclude Operating Rules which codify existing practice simply because the practice was formalized after Appendix A was adopted by the promulgation of a rule.
We are not here dealing with a rule which substantially changed practice in violation of the Agreement. It is Carrier's contention that track car movements in CTC territory have frequently been arranged by telephone in CTC territory since the 1940's on this property. The Organization does not dispute this. The establishment of these rules, insofar as they authorize communication for the issuance of track permits, did not, therefore, substantially affect the relation between the parties. If this practice was permitted without a rule, with no objection from the Organization, the adoption of a rule formalizing the practice, after Appendix A was adopted, does not, ispo facto, make the prior permitted practice improper. The date of the adoption of Rules 575, 576 and 577, insofar as they permit the use of telephones to obtain track and time limit permission for motor trucks, is immaterial for this reason.
Rules 575, 576 and 577, in effect, applied to motor cars the Operating Rules which previously applied to work trains. If telephone messages concerning track car movements are not considered train orders, there is no authority to deem them telegraphers' work under the Scope Rule. The Scope Rule in this case is general in nature. Where this is so, this Board has consistently held 12311-30 196