THIRD DIVISION
(Supplemental)
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
1. Carrier violated the terms of an agreement between the parties hereto when on June 1, 1962, it required or permitted a maintenance of way employe at Lakeside, Utah, to transmit and a clerk in the Roadmaster's Office, Ogden, Utah, to receive a communication of record over the telephone.
2. Carrier shall, because of the violation set out in paragraph one hereof, compensate:
1. Carrier violated the terms of an agreement between the parties hereto when on July 16 and September 8, 1961, it permitted or required an employe in the Chief Dispatcher's Office, Ogden, Utah, to transmit, and Carman Purin at Montello, Nevada, to receive communications of record over the telephone.
2. Carrier shall, because of the violation set out in paragraph one hereof, compensate:
EMPLOYES' STATEMENT OF FACTS: There is in evidence an agreement by and between the parties to this dispute, effective December 1, 1944, reprinted March 1, 1951, and as otherwise amended. Copies of said agreement are, as prescribed by law, assumed to be on file with your Board and are, by this reference, made a part hereof.
The claims incorporated into this appeal were handled separately on property. However, since the question at issue, namely, the performance of telephone work by employes outside the scope of the parties' agreement, is the same in both claims and progressed under the same rules in the interest of brevity and to eliminate repetitious handling, the employes incorporated both claims into this appeal.
Briefly, the facts in Claim No. 1 are: At page 50 of the parties' agreement there are listed the positions existing at Ogden, Utah, on the effective date thereof. The list, for ready reference, reads:
At page 44 of the agreement effective December 1, 1944 (which is the agreement prior to the reprinting) are listed the positions existing at Lakeside, Utah, on the effective date of that agreement. The date upon which these positions were discontinued is not in the record.
At or about 6:29 A. M. June 1, 1962, a maintenance of way employe at Lakeside, Utah, transmitted the following message over the telephone to an employe at the Roadmaster's Office at Ogden, Utah:
On the ground that the transmission and reception of the above message (referred to in the record as the communication of record) over the telephone by employes outside the scope of the parties' agreement constituted a violation thereof, the District Chairman by a letter dated July 9, 1962, instituted this claim. Copy of said letter is attached as ORT Exhibit No. 1. 12625--21 1_19
the current agreement. Not only is the practice entirely proper, but Petitioner has never produced one shred of evidence as to any agreement having been entered into by the Carrier allocating the duties in dispute to employes represented by Petitioner.
Insofar as the claim for overtime rate in these claims is concerned, if there were any basis for claims submitted, which Carrier denies, nevertheless the contractual right to perform work is not the equivalent of work performed. That principle is well established by a long line of awards of this Division, some of the latest being 6019, 6562, 6750, 6873, 6974, 6978, 6998, 7030, 7094, 7100, 7105, 7110, 7138, 7222, 7239, 7242, 7288, 7293, 7316, 8114, 8115, 8531, 8533, 8534, 8568, 8766, 8771, 8776, 9748, and 9749.
Carrier has conclusively shown herein the claim is unwarranted and totally lacking in merit, and if not dismissed for lack of proper notice to other interested parties, Carrier asks that it be denied.
OPINION OF BOARD: The two claims are predicated upon two violations of the Agreement.
A Maintenance of Way employe at Lakeside, Utah, telephoned the following message to an employe at the Roadmaster's office in Ogden, Utah:
"Stop No. 22 tonight to entrain Lakeside and detrain Ogden. Stop No. 27 tonight to detrain Lakeside, to entrain at Ogden. Stop No. 27 tonight to detrain Winnemucca and Imlay. Stop No. 27 Sunday at Lakeside to detrain. Stop No. 28 Sunday at Imlay and Winnemucca to entrain. Stop No. 28 Sunday at Lakeside to detrain."
Neither the Maintenance of Way employe who sent the message, nor the employe who received it were covered under the Telegraphers' Agreement.
Petitioner contends that this was a communication of record which should have been transmitted and received by employes covered in its Agreement. Carrier's position is best stated in a letter dated November 14, 1962, from Carrier's Assistant Manager of Personnel to Petitioner's General Chairman which, in part, says:
"As stated to you in conference, this was simply a telephone conversation on date here involved between a Maintenance of Way foreman at Lakeside and the Roadmaster's Clerk at Ogden whereby the former advised the latter to arrange for certain passenger trains to make unscheduled stops at Lakeside on certain dates to entrain or detrain passengers (employes), and no provision of the Telegraphers' Agreement allocates or reserves these duties to telegraphers, but, on the contrary, they are duties of the employes that performed same."
Carrier's position is untenable. Employes covered in the Telegraphers' Agreement were regularly assigned to work at Ogden, Utah. The message in qaestion is clearly a communication of record. It deals directly with the 12625-22 120
operations of trains. This Division of the Board has repeatedly held that communications of record is work which belongs to employes covered by the Agreement. See Award 8663 and others on the same property.
There is no good reason why employes covered by the Agreement did not transmit or receive the message, except because of economy or efficiency. Neither is a good or sufficient cause for Carrier to violate the Agreement.
Carrier argues that the claims should be denied because of our findings in Awards 10492 and 10493 on the same property. The messages considered in those Awards are not comparable.
In both Award 10492 and 10493 the messages had to do with foreman reports of employes' working time and amounts earned, material on hand for section gangs, report on distressed cars and the reasons cars were held up. These telephone conversations were clearly not communications of record. They had nothing to do with the operation of trains or with the safety of passengers and products. The claims were denied because the Organization had failed to show that the type of communications therein involved was work which by history, custom and practice belonged to employes covered in the Telegraphers' Agreement.
The principle enunciated in Awards 10492 and 10493 may not be applied to the instant claim because the message now under consideration is a communication of record, whereas those upon which the claims in Awards 10492 and 10493 were predicated were not communications of record.
The following telegram was transcribed at the Chief Dispatcher's office at Ogden at 10:45 A. M., P.S.T., July 16, 1961, and received via pneumatic tube at RO Ogden telegraph office at 11:01 A. M. the same day:
I-A-BCW-16 mdse extra 6234 West Conductor Rose from Ogden date delayed 40 minutes between Valley Pass and Pequop cooling hotbox on SP-70450 cattle Solana Meat Company. Vallejo, California and delayed 20 minutes at Pequop setting out car. This is one car from shipment of eight cattle destined Solano Meat Company, Vallejo. Car Foreman Montello make prompt repairs advising when car ready to move. N-894
This information had been previously telephoned by an employe in the Chief Dispatcher's office direct to the car repairman at Montello, Mr. D. Purin. When telegram was received at Ogden, it was noted that a copy was not addressed to Mr. Purin although the text called on him to make repairs.
12625-23 121The information was telephoned to him from the Chief Dispatcher's office and a confirming telegram was sent by a Telegrapher at Ogden to the Agent at Montello.
On September 8, 1961, an employe of the Chief Dispatcher's office at Ogden, Utah, telephoned the Car Repairman at Montello and said:
Petitioner contends that the telephone conversation violated the Agreement because they were communications of record, which is work that belongs to employes covered in the Telegraphers' Agreement.
Carrier's position is best set out in a letter dated July 18, 1962, to Petitioner's General Chairman which says, in part:
Neither the telephone conversation of July 16, 1961, nor the one on September 8, 1961, are communications of record. They had nothing to do with the operation of trains or the safety of passengers and property. While fully sound cars are necessary for the safety of passengers and property, not all communications directing car repairs affect the safety of passengers and property. Each situation needs to be considered and appraised when this principle is applied.
In the two instances upon which Claim No. 2 is predicated, the passengers and property were not immediately in any danger. The cars were set out away from oncoming trains or other hazards. The messages were merely directions to the Car Repairmen to make the necessary repairs and advise when completed.
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
That Carrier violated the Agreement with respect to Claim No. 1 and did not violate the Agreement with respect to Claim No. 2(a) and 2(b). 12625 -24 122
CARRIER MEMBERS' DISSENT TO THAT PORTION
OF THE AWARD SUSTAINING CLAIM 1
All that the employes have proved with reference to Claim 1 is that a foreman in the Maintenance of Way Track Department used the telephone at Lakeside (a point where no Telegrapher was employed) to advise the Roadmaster's office that certain Maintenance of Way Employes for whom the foreman was responsible would entrain and detrain during the weekend. Lakeside is approximately 47 miles from Ogden, the nearest telegraph office, yet the award erroneously states:
The Award holds that this telephone call was a "communication of record", but significantly fails to cite any authority whatever for that ruling. Certainly, the type of communication and the other facts involved in Award 8663, the only award cited to support the decision, do not have the remotest resemblance to this foreman's conversation with the Roadmaster's office. In Award 8663 the Claimant was assigned at the point where a Clerk telephoned traffic information to the Chief Dispatcher, and the Claimant alleged this was his own assigned work, that he did it every day during his regular hours, and that it had been the practice to call him out to do such telephoning when it became necessary during his off-duty hours. In contrast to Award 8663 which involved an open station, in Award 5866 (Douglass) this Board denied the claim that a track foreman was doing exclusive Telegrapher work on this Carrier's property when he telephoned the number of loaded and empty cars on hand at a point where Telegraphers were no longer employed.
There is nothing in evidence to support the holding in this award that Telegraphers had an exclusive right to telephone this information to the Roadmaster's office. It is arbitrary judicial legislation and beyond the
Board's power (Award 12530 - Seff) to hold that the Telegraphers have a right to do any telephoning to the exclusion of others when there is no competent proof in the record that such telephoning has been exclusively reserved to them, either by the express terms of their Agreemnt or by a controlling past practice under a general Scope Rule. Awards 10492 and 10493 (Dugan), involving the same parties and the same Agreement, properly applied the past practice test to determine the exclusive rights of Telegraphers, and that is the test which should have been applied here.
It is ironical that this Award should attempt to distinguish Awards 10492 and 10493 (Dugan) by resorting to the completely arbitrary conclusion that the telephoning involved in this case is a communication "of record." The Board has frequently noted that discussing a case of this kind in terms of messages "of record" merely adds confusion. In Award 10425 (Dolnick), which involved passenger reservations, the Board took the correct and realistic attitude toward the effect to be given the Organization's unsupported arguments that certain telephoning constituted communications "of record."