THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYES UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Railway, that:
1. Carrier violated the Telegraphers' Agreement when on January 2, 1961, it failed and refused to permit W. H. Coley, Clerk-Telegrapher, Gainesvi11e, Georgia, to deliver train orders Nos. 56 and 57, and clearance card, addressed to Extra 6204, but instead required W. H. Coley to leave said orders and clearance card on desk in office to be picked up by train service employes of said train.
2. Carrier shall now compensate W. H. Coley for one call, two hours and 40 minutes, at time and one-half rate, or $9.88.
EMPLOYES' STATEMENT OF FACTS: Gainesville, Georgia is located on the Carrier's main line between Charlotte and Atlanta. At Gainesville there is a negotiated position of clerk-telegrapher with assigned hours of 7:00 A. M. to 4:00 P. M., seven days per week, with Tuesday and Wednesday as the assigned rest days covered by a regular relief assignment. Claimant W. H. Coley is the regularly assigned clerk-telegrapher at Gainesville and the only employe under the Telegraphers' Agreement at that location. On January 2, 1961, his negotiated rate of pay for the position of clerk-telegrapher was $2.4450 per hour. The overtime rate, or the time and one-half rate, was $3.650 per hour.
Lula, Georgia is located 12.4 miles north of Gainesville. There is a branch line from Lula, Georgia to Athens, Georgia, a distance of 38.9 miles.
Sunday, January 1, 1961, was New Year's Day, one of the seven negotiated holidays under the agreement and also a work day of the clerk-telegrapher position. Under this agreement when the holiday falls on Sunday, the day following, Monday, January 2, 1961, was observed as the holiday. Monday, January 2, 1961, was also a work day in the work week in the clerk-telegrapher position.
The parties in Award 8327 had a train order rule similar to the one here involved.
The evidence of record does not support petitioner's contention that the agreement was violated, nor does it support the claim for pay. For the reasons set forth herein, the claim should be denied in its entirety, and carrier respectfully requests that the Board so decide.
OPINION OF BOARD: This case involves the same parties, Agreement and issue as Award No. 13712. For the reasons stated in that Award we will sustain the claim.
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
As reliance is placed upon Award 11788, our dissent to that award is, by reference, made a part of this dissent.
The award here sustains the claim though admittedly the Carrier did not permit employes not covered by the contract to handle the train orders involved. The train orders involved in this dispute were left on desk in office by claimant telegrapher and were not subsequently "handled" or even touched by anyone until picked up by the crew to whom they were addressed. Certainly inherent in such a claim is the obligation of petitioner to prove handling by non-contract employes, yet the majority ignored this and followed Award 11788 which sustained the claim merely because other referees in prior awards had committed similar error.