DEFINITION OF TRICK TRAIN DISPATCHER

This class includes positions in which the duties of incumbents are to be primarily responsible for the movement of trains by train orders, or otherwise; to supervise forces employed in handling train orders; to keep necessary records incident thereto; and to perform related work."

"OPERATING TIME TABLE NO. 8

RULE 221

(a) Where trains are operated on single track, Clearance Form A must be filled out by the operator before clearing a train, showing thereon, without erasure or alteration, the total number of train orders and the number of each train order, if any, addressed to a train. He will then repeat from the clearance to train dispatcher the information shown thereon. The dispatcher will make the required record in the train order book, and if operator has correctly repeated the number of all train orders addressed to a train will respond by giving 'OK', the time, and the Superintendent's initials, which the operator will endorse on the Clearance."

"RULE 211

Clearance Form A must be filled out by the operator before clearing a train, showing thereon, without erasure or alteration, the total number of train orders and the number of each train order, if any, addressed to a train. He will then repeat from Clearance Form A to the train dispatcher the information shown thereon. The dispatcher will make the required record in the train order book, and if operator has correctly repeated the numbers of all train orders addressed to a train will respond by giving 'OK', the time and his initials, which the operator will endorse on the Clearance Form A."

The Carrier's contentions denied there were any violations of Rules 1 and 2 of the Agreement, or that this work was the exclusive work of the dispatchers. The track in question was a spur track, entirely within yard limits. This work traditionally has not been within the Scope Rule of the dispatchers, but under the control of yard supervisors and others. Thus Rule 908 properly allocated the work in question in this dispute. From August 18, 1957, bulletined instructions were issued by the Superintendent to the effect that this train would operate on the Keystone Spur as provided by Operating Rule 908 without clearance Form A or train orders. The agent at Hill City gave such instructions verbally to the train crew about the block conditions on the spur track. This procedure was adopted because the train movement was in yard limits; similar to a switching movement, wherein the dispatcher does not direct the movement or keep a record of the same. These instructions concerned a block condition not train orders. Furthermore, these instructions remained in effect from August 18, 1957 to August 10, 1962, or nearly five years, without objection by the Claimants.

When the second Black Hills Central train began operation on August 11, 1962, the instructions were amended only to the extent that operators located at both Hill City and Oblivion were to issue Clearance Form A as a precautionary measure. No additional information was added that had not been given verbally, just recording the condition of the block. No decisions were to be made by either operator with respect to which train would run first, arranging meets or to "OS" the trains to the dispatcher. All that was required of the operator was to know the condition of the block and transmit this information to the train crew on a Form A. The dispatcher at Alliance, Nebraska could not determine the condition of the block from his records, nor did he record the movement on the train sheet. The calling of the dispatcher would add nothing to the efficient operation of the train, or the responsibilities of the dispatcher.

Thus, the responsibilities of the dispatcher were the same prior to and subsequent to the use of Clearance Form A. If the Agreement was not violated when the instructions were verbal, the use of a Form A could not result in a violation of the Rules unless the contents of such form required more information. Operating Rule 908 is as follows:

"RULE 908

Engines and cars must be moved on yard tracks only as such tracks are seen or known to be clear.

Before moving engines and cars on station, or industry tracks, train and yardmen must know that the cars can be moved with safety.

Switches must be properly lined for the movement to be made.

Unless otherwise authorized cars must not be shoved on yard tracks, team tracks, industry or freight house tracks, until a member of the crew is stationed at the opposite end of tracks for the purpose of ascertaining the amount of room or clearance and prevent shoving cars out to foul.

Where conditions make it necessary, hand brakes must be set before placing cars at industries, at team tracks, or on other tracks.

Where gates are provided across tracks, or where tracks extend into buildings through openings equipped with doors, a member of the crew must first see that door or gate is open and properly secured, and then place himself in a position to pass signals, to insure cars being spotted without causing damage.

Care must be taken in switching tracks on which occupied company service cars are stored and when practicable they must not be moved in switching operations.

When occupied company service cars are set out of a train at a station, or on a track between stations, or when moved from one track to another at a station, the conductor must notify the Chief Train Dispatcher.

Trains will be notified of occupied company service cars when such cars occupy sidings or station tracks used as sidings."

An examination of the Scope Rules reveals that they are general in nature and not detailing any particular work to any class or craft. They fail to show that this work is exclusively that work of the Claimant Organization. Rule 1 of Article 1 does not describe the work but lists job titles. Rule 2 of Article I is a classification of Trick Train Dispatcher, without granting any exclusive right to any specific work. There is no mention in said rule that it was one of the functions of the Claimant to approve a Form A when it contains such block instructions as revealed in this record. The expression in Rule 2:

. are to be primarily responsible for the movement of trains by train orders, or otherwise. . . :'

does not make the dispatcher exclusively responsible for the movement of trains by train orders or otherwise. In the facts before us, the operators were the employes responsible for the instructions given, not the dispatcher; no train orders were used nor record kept of the movement.

Does custom, tradition or past practice reserve these duties to the Claimant? Our answer is no. For approximately five years this operation was conducted on the basis that the block instructions given to the train crew verbally, were permissive and not in violation of the Agreement. Throughout this period, no objections were raised by the Claimants that the work cited here belonged to them. There is no allegation in the record that the use of the Form A changed the method of operation or that it contained any information other than what information had been given verbally for the past five years. There is no allegation that train orders were given as with the Carrier's own train operating over the same spur. It has been alleged by the Claimants that this operation required checking with the dispatcher when it operates over the spur line. However, it must be observed that this regular Burlington train moves over other tracks by train order necessitating that the dispatcher have knowledge of this movement, which he records and directs other trains based on the information so received.

The Agreement does not give to the dispatcher the exclusive right to approve all situations where Form A is used. It has been alleged and not denied that the only purpose in using Form A was to advise as to the condition of the block as a substitute for a block signal. Any other type form could have been used, but this form was available. The information contained on

the form had no effect on the operation of the train after the block condition was known. No records were kept of the movement by the dispatcher nor was he acquainted with the situation. He would only be giving approval to the train movement after the operator gave him the information about the block. The approval by the dispatcher would serve no purpose.

The Complainant has relied on Operating Rule 221, of the Carrier's Operating Rules and Rule 211 of the Standard Code of Operating Rules, in support of their position. Rule 221 specifically provides for the use of Form A where train orders are used in directing the movement of a train. In this di.qpute, train orders were not used and have not been so alleged to have been used or contained in Form A. Rule 211 also refers to train orders which is not denied. However, the question of whether Form A contained train orders was never raised or placed in issue. In Award 7770 of this Division it was held: "The claim must stand or fall on the rules above cited, for since the operating rules are established unilaterally by the carrier, they may be changed unilaterally and a departure from the practice prescribed in these rules is not comparable to a violation of agreement rules". Thus, we are bound by our interpretation of the Scope Rule rather than the Operating Rules.

From the evidence presented and the Awards of this Division, we are of the opinion that the Agreement was not violated. It appears in the record that the Carrier has attempted to continue to have this work performed in as nearly the same manner by the same employes, after the use of Form A as it was prior to the use of Form A. No allegation has been made in the record that the Rule was violated prior to August 11. 1962, when Form A was introduced. Form A contained no further information than was transmitted verbally. In Award 12289 of this Division, we held: "We should be guided by the contents of the form rather than the form itself." These are the tests of whether the Agreement was violated.

Thus, the record before us does not show that this work on this location exclusively belongs to the train dispatchers, nor have they had this work exclusively reserved to them by tradition, practice or custom.

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

LABOR MEMBER'S DISSENT TO AWARD 12505,

DOCKET TD-14337

The Award of the majority in Docket TD-14337 is a classic example of one which so clearly evidences an incredible disregard for the precisely stated issue and the record properly before the Division for its consideration.

Even a cursory reading of the record discloses that the Carrier, resorting to what may fairly be regarded as contemptuous unconcern for this Board's rule and established principles, devoted much of its Ex Parts Submission to issues which had neither been raised nor discussed by the parties during negotiations on the property. All this was expressly pointed out at some length, with ample citation of authority, in the Employes' response to the Carrier's Submission. The author of this dissent is regretfully impelled to express grave doubt as to whether the Referee even read the document in reference. Certainly there is no room for doubt concerning the fact that new issues cannot be raised for the first time when a dispute reaches this Board. That principle is little short of a truism. Yet it is very obvious from even a casual reading of Award 12505 that the Referee did consider issues not properly of record. It is equally obvious that those improperly injected issues, clearly barred from consideration, materially colored and influenced the Referee's erroneous conclusions. The issues properly before him, including very relevant exhibits submitted-and properly submitted-by the Employes have been completely disregarded. In view of all this the Award is not dispositive of the issues properly before the Board and is wholly devoid of any precedential value.

Moreover, Award 12505 is replete with factual misstatements. However, it would serve no useful purpose to extend this dissent to the length which would be necessary to point out and comment upon such errors. This for the reason that the Carrier subsequently restored to the claimant employes their claimed right to authorize Clearance Form A as to the train operations involved. That was the issue of the whole dispute.

In view of this, it would likewise be inappropriate to comment upon the material significance and weight accorded to the contention that the Employes had "acquiesced" in a practice for some five years "without objection". No extended comment is warranted, for even a juvenile would understand from reading the record properly before the Board that there were very important differences between the train operation made effective in 1962, and which resulted in this dispute, and the operation on the limited and strictly narrow gauge basis during the alleged period of "acquiescence".

Not only was Award 12505 rendered in disregard of this Board's rules and principles relating to the injection of entirely new issues-which issues were considered and obviously accorded material weight-the complete disregard for the record and issues properly before it have resulted in a clearly erroneous and palpably stupid holding. As Montaigne so aptly put it, "No one is exempt from talking nonsense; the misfortune is to do it solemnly."

R. H. Hack