-OWsse
Award No. 14283
Docket No. TE-13831
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Don Harr, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
SOUTHERN RAILWAY COMPANY
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
Saturday, February 25, 1961, Saturday, March 4, 1961, Saturday,
March 11, 1961,Saturday, March 18, 1961, and Saturday, March
25, 1961, it required or permitted one of the members of train crew,
train No. 69, employes not covered by the Telegraphers' Agreement,
to call the dispatcher on ,radio telephone from Alston, S. C., or a
point nearby within the limits of Alston, S. C., and handle (receive
and deliver) a verbal train order that Train No. 51 had passed
Alston, S. C., further violated the Telegraphers' Agreement, when
on Saturday, April 1, 1961, Saturday, April 8, 1961, and Saturday,
April 15, 1961, it required or permitted one of the members of train
crew train Work Extra 2032, to call the dispatcher on radio telephone
from Alston, or a nearby point within the limits of Alston, S. C. and
handle (receive and deliver) a verbal train order that train No. 51
had passed Alston, S. C. This is a continuous violation, therefore a
continuous claim for all subsequent violations as set forth herein.
2. Carrier shall compensate claimant M. H. Sternenberg, AgentTelegrapher, Alston,, ~S. C. by paying him one call as is provided for
do Rule 31 of the Telegraphers' Agreement, for Saturday, March
11, 1961, Saturday, March 18, 1961, Saturday, March 25, 1961, Saturday, April 1, 1961, Saturday, April 8, 1961, and Saturday, April
15, 1961, and for all subsequent dates that violations continue.
EMPLOYES' STATEMENT OF FACTS:
M. H. Sternenberg is the regular assigned agent-telegrapher at Alston, South Carolina, and has assigned
hours of 7:30 A. M. to 4:30 P. M., with one hour off for lunch. His assigned
work week is Monday through Sunday, with assigned rest days of Saturday
In addition, carrier's book of "Operating Rules" contains the following:
"99. When a train is moving under circumstances in which
it may be overtaken by another train, the flagman must drop lighted
fusees at proper intervals and take such other action as may be
necessary to insure full protection.
When a train stops under circumstances in which it may be
overtaken by another .train the flagman must go back immediately
with flagman's signals a sufficient distance to insure full protection,
placing two .torpedoes on rail 100 feet apart and, when necessary, in
addition, displaying lighted fusees.
When a train stops under circumstances in which it may be
overtaken by another train, the engineman will immediately signal
-the flagman to protect the rear.
When ready to proceed the engineman will recall the flagman
arid, when safety to the train will permit, he may return, leaving the
torpedoes and a lighted fusee.
The front of the train must be protected immediately in the
same way when necessary by the forward trainman, fireman, or other
competent employee.
Within signalled territory, protection against following trains
on the same track will have been complied with when flagman goes
back a sufficient distance to insure full protection against trains moving at restricted speed.
When day sgnals cannot ~be plainly seen, owing to weather or
other conditions, night signals must also be used.
Conductors and enginemen are responsible for the protection
of their trains."
(Exhibits not reproduced.)
OPINION OF BOARD:
The claim alleges a violation of .the Telegraphers' Agreement when the conductor of train No. 69 called the dispatcher
on radio
telephone to
ascertain the whereabouts of train No. 51. This information was necessary for train No. 69 to enter upon the tracks that train
No. 51 operates on.
On the dates involved in this dispute Claimant was the regularly assigned
agent-telegrapher at Alston, with assigned hours of 7:30 A. M. to 4:30 P. M.
Monday through Friday, and rest days of Saturday and Sunday. Monday
through Friday of each week train No. 51 was registered by the telegrapher
at Alston. On Saturdays there was no telegrapher on duty to register train
No. 51.
The employes ask that the Claimant be allowed a minimum call for each
Saturday commencing February 25, 1961, and all subsequent dates that the
alleged violation continues. The employes rely on Rule 1 (Scope) and Rule
31 (Handling Train Orders) of their effective Agreement.
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The sole question to be decided is whether .the communication in question
constituted a "train order" within the meaning of Rule 31.
We have held previously that a "train order" can be in oral form.
Award 12702 (Yagoda) states:
"The debate between the parties as to whether the communiea
,tio. in question constituted a 'train order' within the meaning of
Rule 3,1, must be decided in favor of the Petitioner. Carrier's Ex
hibit A (timetable instructions) treats such communications as a
variant of train order, saying explicitly that 'authority by telephone
from operator in charge of block . . will take the place of train
order.' The explanatory letter of October 19, 1929, accompanying
Rule 31 1 in the Agreement, makes it clear that the conductor's role
in the interchange of request and response in such situations is en
compassed by the concept of a train order and that it is thereby
barred to conductors 'except in emergency' or via phone to 'the near
est telegraph station.' The first of these situations was not shown
to have here existed; the second was not complied with.
"Under these circumstances, it is not determinative that the
message was handled in oral form."
In 12702 the train conductor used the telephone to ask for verbal permission to move the train. In the instant case the conductor did not ask
for permission to enter upon .the track but only asked the location of train
No. 51. However, train No. 69 could not enter upon the track until it had
been determined that train No. 51 had passed Alston. We feel that this
implies permission and that the facts justify the finding that the communicate
tion was a verbal "train order".
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 Employee involved in this dispute are respeetively Carrier and Employee 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 violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this Slat day of March 1966.
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CARRIER MEMBER'S DISSENT TO AWARD 14283-DOCKET TE-13831
REFEREE DON HARR
Petitioner's Statement of Claim alleged that carrier violated the effective
agreement and that claimant be allowed a call payment "as provided for in
Rule 31" on the dates specified.
After stating that "The sole question to be decided is whether the communication in question constituted a 'train order' within the meaning of
Rule 31," the majority made the following irreconcilable and erroneous conclusion:
"'*
* * In ,the instant case the conductor did not ask for permission to enter upon the track but only asked the location of train
No. 51. However, train No. 69 could not enter upon the track until
it had been determined that train No. 51 had passed Alston. We
feel that this implies permission and that the facts justify the finding
that the communication was a verbal `train order'."
Rule 31 applies only to handling train orders. The undisputed evidence
of record shows that the conductor of Train 69 used the company telephone
at Alston merely to obtain the location of Train 51. The Train Dispatcher
.did not issue, nor did the Conductor receive, any train orders whatsoever,
or for that matter, any "verbal" or "implied" orders. Moreover, under Car,rier's Operating Rules, Train 69 did not require any orders or permission to
enter or occupy the track at Alston. This fact was brought out by carrier in
the handling on the property as well as in its submissions to .the Board.
Petitioner failed to prove that the conductor handled train orders within
the meaning of Rule 31 or that the telephone communication constituted the
performance of work reserved exclusively to telegraphers through historical
custom, practice and tradition on the property. That petitioner could not
meet the required burden of proof is evident from the record and numerous
prior Third Division Awards between these same parties-see Awards 11812
(Christian), 12150-71 (O'Gallagher), 12699 through 12711, 12935 (Yagoda),
and 14244 (Perelson).
For the reasons stated, Award 14283 disregards the plain terms and
provisions of Rule 31, and we respectfully dissent.
Keenan Printing Co., Chicago, Ill. Printed in U. S. A.
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