STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on The New York, Chicago and St. Louis Railroad Company (Wheeling and Lake Erie District), that:
1. Carrier violated telegraphers' agreement, when on October 24 and November 3, 1958, it required and permitted Brakeman Engleman, train No. 170, to receive, copy and deliver train order No. 221 and Engineer H. E. Yoder, on train No. 192, to receive, copy and deliver train order No. 208 at Mishler, Ohio, direct from dispatcher at Brewster, Ohio.
2. That Brakeman Engleman and Engineer H. E. Yoder are not employes covered by the telegraphers' agreement.
3. Carrier shall compensate senior idle extra employes R. G. Garl, first out on board October 24, 1958, and Gary Farnsworth, first out on board November 3, 1958, with one days pay, 8 hours each, at the lowest rate shown in the wage scale on October 24 and November 3, 1958, covering telegrapher positions for the above violations.
4. Also, carrier shall compensate senior idle extra employe or senior idle employe on rest, as case may be, for all subsequent dates of violations at Mishler, Ohio, joint check of carrier's records to determine dates of violations, also name of employe.
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement by and between the parties to this dispute, effective as to rates February 1, 1951, and effective as to rules February 1, 1952, and as otherwise amended.
At page 14 of an Agreement between the parties hereto, effective February 1, 1910, appears the following listing:
The date upon which the above listed position was discontinued by the Carrier is not present in the record of this case.
The Carrier, in its submission in this case, has conclusively shown that the claim is without merit and should be denied because:
1. The rules, as interpreted by over 45 years of custom and practice do not support the claim.
2. The Employes, during such period, have attempted not only once, but on six different occasions (1933, 1937, 1939, 1947, 1954, and 1957), to secure through negotiation, the adoption of a rule which would support the claim.
3. The Employes, by the institution and progression of this claim, are attempting to secure what they have been unable to secure by negotiation on the property. A sustaining award would have the effect of granting the rule requested by the Employes. The writing of new rules is not a function of this Board.
The Carrier submits that this case is on all fours with Items 1, 2, 3, and 4 in Docket TE-8374 involving the Delaware and Hudson Railroad. The following reasoning of this Board in denying such claims in Award 9204 rendered recently is particularly applicable here:
OPINION OF BOARD: This is a case wherein a Brakeman and an Engineer received, copied and delivered train orders direct from a Dispatcher at Mishler, Ohio, a location where a telegrapher was not employed but where in fact one was so employed over 45 years ago, at which time the position was abolished. A telephone connected to the dispatcher's circuit was installed and used at that particular location.
The Organization contends that the Carrier, by permitting the above practice, has violated the basic contract, to wit; Rule 1, Scope; Rule 2, New Positions- Classification-Rating Positions; Rule 12, Seniority; Rule 15 (f) New Positions of a Temporary Nature; Rule 24, Extra Board Assignment of Extra Employes; and Rule 26, Handling Train Orders.
With reference to Rule 15 (f), the employes maintained that when the Brakeman and Engineer handled the subject train orders, such handling had the effect of re-opening the telegrapher position thus creating a new position 13222-29 859
of a temporary nature of less than 30 calendar days to be filled by qualified extra employes. They also maintain that Rule 2 is controlling in this case, especially so when considered in conjunction with the Scope Rule; that both provide for the incorporation into the Agreement of positions, the occupants of which perform work similar to that performed by the occupants of positions listed in the Scope Rule. They therefore interpret Rule 2 to mean that where employes perform service in the classes set forth in Rule 1, the position so created belongs under the Scope of their Agreement. Furthermore, that where this is not possible without adding language to the Agreement, then employes classified in accordance with Rule 2 under the classifications as set forth in Rule 1, who have been denied the right to perform the class of work, are nevertheless entitled to pay.
The employes also submit for the Board's consideration the allegation that Rule 26 has been violated, in that it specifically reserves to the telegraphers, as a class and craft on this property, the exclusive right to handle communications of record in connection with the receiving, copying and delivering of train orders; further that the Carrier's use of train service employes at Mishler to perform the train order work displaced employes covered by the Agreement at this station location. This Rule reads as follows:
Additionally the employes allege that the Scope Rule, by listing the various classifications of positions covered by the Agreement, not only of necessity includes the work of such positions, but also grants them the exclusive right to such work. This essentially is the argument propounded by the employes in their original Ex Parte Submission insofar as this specific rule is concerned. However, in their rebuttal, in commenting upon the Carrier's defenses to the effect that the Scope Rule is broad and general and does not grant the exclusive right etc. as well as the Carrier's defense of practice, they state that "fortunately, here the general rule of interpreting and applying the Scope Rule of telegraphers' Agreement does not apply. Special Rule 26 applies."
The Carrier in defense asserts that the Scope Rule, listing the positions covered by the Agreement, appeared in contracts as far back as 1910, and that the Rule as currently written first was incorporated into the contract which became effective on July 1, 1919; that it was continued with but minor changes in subsequent contracts, which became effective as listed below:
The latter is the presently effective Agreement, and as Carrier states it is pertinent to an adjudication of this case to mention that the present Scope Rule first became effective five years after the last telegrapher position at 13222-ao 860
Mishler was abolished. Directing our attention to Rule 26, the Carrier states that this rule first appeared in the working Agreement, effective February 16, 1926, over twelve years after Mishler was closed and has been part of all subsequent working Agreements without change. They further point out that it is difficult to understand how the copying of train orders in 1958 displaced a telegrapher whose position was abolished almost 45 years prior thereto.
The Board in this case has been presented with numerous awards by both opposing factions. They include an infinite variety of factual situations over a long protracted period of time involving many different Carriers including the one in this case. These claims have developed into a substantial number of sustaining awards as well as an equally substantial number of denial awards. Some decisions are distinguishable from one another because of differing factual situations; however, a careful analysis of many of them leads one to the conclusion that this subject is a veritable jungle of conflicting and indeed blatantly obvious contradictory decisions. It thus becomes apparent that despite the extended period of time since the advent of the telephone, the parties to this dispute including other Carriers, have been unable to resolve this controversy or to reach any fundamental Agreement as to the meaning and effect of the rules involved.
With this as prologue we address ourselves to the evidence as presented in this case. It reveals that the present Scope Rule has been incorporated into every Agreement, beginning with the Contract of July 1, 1919, and that it has contained substantially the same language except for some minor modifications which had no effect on its substantive meaning. It is a broad general Scope Rule merely enumerating the positions covered by the Agreement and does not delineate nor define the work. Therefore, in order to support the contention that the Claimant has exclusive right to the work, the subject of this claim, resort must be had to tradition, historical practice and custom with the burden of proof being on the party claiming the work. The Carrier has presented us with a preponderating body of evidence which shows conclusively that the practice on this property over many years has been diametrically opposed to the contentions advanced by the Organization. It is true that the Organization did list a number of cases where it was shown that the Carrier agreed to pay for certain calls made by employes not within the Scope of the Agreement, but each one of those cases is distinguishable on a factual basis from the instant case. The evidence, when considered in conjunction with this Scope Rule convinces us that the Telegraphers do not have that exclusive right which is so necessary for a sustaining award. We are further buttressed in our opinion by the fact that many specific attempts were made over the years by the Organization to revise the Contract to the extent that the claim involved, had the revisions been adopted, would now require us to issue a sustaining award. However, these attempts were unsuccessful and are persuasive that the Scope Rule does not give the telegraphers the exclusive right to perform the work involved. It is our considered judgment that the controlling rule in this case is the Scope Rule, and that the other rules cited by the Organization are of secondary importance. They do not change, modify or restrict the application of the Scope Rule in this case and we accordingly and specifically reject the contentions of the Organization that Rule 26 gives them the exclusive right to the work. The meaning and intent of the language contained therein is clear, concise, unambiguous and does not in any way restrict the Scope Rule.
The principles enunciated in this decision are by no means "de novo", since they have been articulated innumerable times in many decisions of this Board. We therefore do not consider it necessary to cite any specific awards 13222-31 361
as precedents for our findings. We have specifically avoided citing and discussing other awards which have been presented to us by the Organization, because to do so would require a prolonged dissertation of the subject matter, requiring us to make distinctions, which, in our judgement, because of the multiplicity of conflicting decisions, would serve no useful purpose. Suffice it to say that all the awards presented by both sides have been carefully analyzed, and that the reasoning and principles upon which reliance has been made in this case, find support in many of them. We will deny the claim.
FINDINGS: The Third Division of the Adjustment Board, 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
DISSENT TO AWARD NO. 13222
DOCKET NO. TE 12208
On October 31, 1957 The Order of Railroad Telegraphers instituted proceedings before the Board on a claim wherein the Board was requested to rule on specific claim reading as follows:
That dispute was progressed in accordance with rules of procedure of the Board and was assigned Docket No. TE-10131. The Carrier filed in that Docket four separate submissions wherein its position with regard to that claim was set forth in full.
Due to the backlog of cases before the Third Division, the dispute was not reached until 1963.
On August 5, 1963 the dispute was resolved in an Award rendered by Referee Jim A. Rinehart, which was adopted by the Board as Award 11667 reading as follows:
Under date of June 30, 1960 the New York, Chicago and St. Louis Railroad Company (Wheeling and Lake Erie District) instituted proceedings before the Board in the claim that is set forth in Award 13222. This dispute was ultimately docketed as TE-12208. In this case the Railroad requested the Board to enter declaratory judgment on the claim that had been presented to it by The Order of Railroad Telegraphers. In this dispute the parties were given an opportunity, in accordance with the rules of the Board, to present their respective positions. The submissions in this docket were, of course, all prepared and submitted prior to the rendition of Award 11667.
The question presented for decision in the dispute that resulted in Award 13222 is indistinguishable from the question submitted to the Board and resolved in Award 11667. Yet, it is to be noted Referee McGovern did not see fit to mention the precedent award.
Referees and partisan Board Members alike have throughout the history of the Board insisted that the usefulness of the Board was dependent upon following the principle of adherence to established precedent. More especially when the prior Interpretation involved the identical Agreement rules, same parties, similar facts, etc. Referee McGovern has in several of his awards recognized this principle.
in which would justify it in ignoring Award 5886. In the interest therefore of the doctrine of 'stare decisis' and relying on 5886, we must deny the claim."
"The burden of proof was on the railroad to prove that the award was wrong."
"OPINION OF BOARD: On authority of Award 4018, same Agreement, same parties, and the rule at issue, the Board here finds that copying line-ups by means of the telephone, at stations where an operator, under the Telegraphers' Agreement, is employed, even though the work is performed prior to the starting time of the regularly assigned operator, comes within the scope of the subject Agreement.
The cited Award also forecloses the Carrier's contention that negotiations on the property, prior to the date of the Award, is evidence that the work is not reserved to employes covered by the Agreement. Aside from the fact that evidence of past negotiations is of qustionable value, except in cases where the intent of the parties is clouded in doubt, such evidence must always give way to clear and unambiguous language, or later rules interpretations by this Board. It does not admit of dispute that the Board's interpretation of rules becomes a part of the Agreement to all intents and purposes as though written into the rule book. Thus, the parties are governed by Award 4018, subject to valid distinctions on the facts and rules at issue, or until the weight of judicial opinion shifts. This Board has many times held, when confronted with Scope Rules, general in character, as here, that 'tradition, historical practice and custom' shall govern the work covered. Therefore, evidence of negotiations on the property in conflict therewith has no place in resolving this vital point at issue, and we are conpelled to hold that, by tradition and custom, of which the Board's Award 4018 is a part; the work of receiving and copying line-ups is under the Agreement." 13222-38 868
In Universal Camera v. N. L. R. B. (340 US 474) the Supreme Court announced the principle to be used by Courts of Appeal in reviewing orders of the National Labor Relations Board. It said:
In the instant case, Referee McGovern apparently assumed that he had the legal right to ignore the precedent award. If so, this approach was contrary to established "case law" of this Board and relevant court decisions. The Supreme Court has also warned that an arbitrator does not sit to dispense his own brand of industrial justice.
It is true the award will have the immediate effect of denying the claimants the few dollars requested as compensatory damages. That the decision settles anything, or is of any permanent significance may well be doubted. The opinion does not give any clues as to why the Referee ignored the prior award. If Referee McGovern could not conscientiously follow the decision in the prior award, the very least that could reasonably be expected of him was a statement as to why he could not do so. If the reservation of work rules were repugnant to him, they were not to the parent company. The Agreement of January 1, 1959 between the New York, Chicago and St. Louis Company and 'The Order of Railroad Telegraphers in Rule 30 (Handling Train Orders), provides:
In conclusion, as was pointed out by the Court of Appeals, Fifth Circuit in Hodges v. Atlantic Coast Line (310 F. 2d 438), this Board possesses "awesome powers". When the decision goes against the claimant, he has no further recourse. Yet, when the decision is in his favor, the Carrier may refuse to comply with the award and force unlimited court review as a matter of right. See footnote 13 at page 51, Interstate Commerce Commission v. Atlantic Coast Line (334 F. 2d 46). The impartial reader of the opinion may, with good cause, question whether the award of Referee McGovern is in accord with the principles announced in many awards, including his own, and the decisions of the Federal Courts.
It is not the purpose of this answer to argue the case properly decided by this decision. That was previously done at some length. Nor is there any need to justify the decision or vindicate the Referee, as that is done exceptionally well in the course of the "Opinion of Board" in Award 13222. It has also been done most convincingly in the following recent decisions from the same 13222-39 $69
property where the same Scope Rule and Rule 26 (Train Order Rule) were involved, discussed and interpreted:
If there was any doubt about the correctness of this decision in the Dissenter's mind, we believe those doubts should now be dissolved in the face of this real body of precedent. Assuming further the correctness and the sincerity of Dissenter's comments regarding the adherence to precedent from the same property-in the absence of palpable error-where the same rules are involved-we anticipate no further disputes originating on this property on the questions now conclusively settled by these "final and binding decisions".
We do feel compelled to comment upon the following statement made in the Dissent:
* * * If the reservation of work rules were repugnant to him, they were not to the parent company. The Agreement of January 1, 1959 between the New York, Chicago and St. Louis Company and The Order of Railroad Telegraphers in Rule 30 (Handling Train Orders), provides:
The inference is, the foregoing rule was in the contract interpreted by this Board in Award 13222. It was not. Rule 30 is found in the contract between the original New York, Chicago and St. Louis Railroad Companyexcluding the Wheeling and Lake Erie District. The dispute covered by Award 13222, originated on the Wheeling & Lake Erie District. If the Organization wishes to incorporate Rule 30 or any part thereof, into the present contract, the proper procedure is prescribed in Section 6 of the Railway Labor Act. They are familiar with that procedure as evidenced by the existence of Rule 30 in the original NKP contract.
The Referee was fully apprized of the foregoing facts, just as he was made aware of the palpable error in prior Award 11667, more fully described in our dissent thereto. It is apparent he was convinced of that error, just as other Referees, since the rendition of Award 11667, have been unpersuaded by the findings therein. See and compare Awards 11754, 11882, 11908 and 13288, in addition to those cited above.
Award 13222 requires no affirmation from us, as it finds its merit in the logic and good judgment it employs.