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Award No. 14459
Docket No. TE-12413
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
David L. Kabaker, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
(Western Lines)
STATEMENT OF CLAIM: Claim of the General Committee of The Order
of Railroad Telegraphers on The Atchison, Topeka and Santa Fe Railway, that:
1. The Carrier violated the Agreement between the parties when,
on or about July 22, 1959, it removed the work of operating switches
and signals governing the movement of trains heading in and out main
line tracks and other tracks at Islets, New Mexico, from employes
covered by the Telegraphers' Agreement and delegated the performance of this work to employes not within its coverage;
2. The Carrier shall be required to restore said work to the scope
of the Telegraphers' Agreement to be performed by employes covered
thereby; and
3. For each and every eight hour shift that the work previously
performed by employes under the Agreement at Islets, New Mexico,
is performed by means of CTC equipment operated by train dispatchers at Las Vegas, New Mexico, the Carrier shall be required to
compensate the senior idle extra telegraph service employe in an
amount equivalent to a day's pay at the rate applicable to the positions
at Islets, New Mexico, and, if there be no idle extra telegraphers,
then the Carrier shall compensate the senior telegraph service employe or employes idle on a rest day in an amount equivalent to a day's
pay at the time and one-half rate.
EMPLOYES' STATEMENT OF FACTS: Agreement between the parties,
bearing effective date of June 1, 1951 is in evidence.
For many years the Carrier maintained an interlocking plant at Islets,
New Mexico. In this office the Carrier maintained three shifts of telegraphers
(leverman) in an around-the-clock service who performed the work of operating
switches and signals governing the movement of trains in and out of Islets.
First: Claim is a proper one for consideration as to the
requirements of Article V, Section 1-a of the August 21,
1954 Agreement. The National Railroad Adjustment Board
has repeatedly held the fact a claim is general and fails to
name the claimant except as a class is not a bar to its disposition and that who gets the penalty is but an incident to the
claim itself and not a matter in which the Carrier is concerned but if the Agreement was violated it must pay the
penalty therefore in any event.
Second: This Organization has made no agreement with
the Carrier to permit telegraphers' work to be transferred to
another craft or crafts of employment. We have always maintained this to be our work and by the removing of same
to another office to be performed by other crafts is not
in agreement with us and a violation of our Agreement.
Third: The employes clearly outlined their position in
a letter dated November 29, 1943, file 25-K-1143, from former
General Chairman J. F. Anderson to the General Managers
reading in part:
`It is our position that if dispatchers are assigned
to handle any centralized traffic control machine it
will be a violation of the Scope Rule and Article II
(a) of the current Telegraphers' Schedule; therefore,
this our request that employes covered by the
Scope Rule of the Telegraphers' Schedule be assigned
to handle the control machines at locations where
such machines are installed or to be installed.'
Fourth: Prior to July 22, 1959, these switches and signals
were located at Islets and rightfully manned by employes of
the telegraph class. On July 22, 1959, when the work of
operating switches and signals were removed from employes
of the telegraph class and transferred to employes not covered
by the Telegraphers' Agreement, the agreement was violated.
Yours truly,
/s/ K. A. Vose (if)
Acting General
Chairman"
(Exhibits not reproduced.)
OPINION OF BOARD:
After modified control equipment was placed in
service on July 22, 1959, the work of manipulating levers for switches at
Isleta, New Mexico, which had been performed by telegraphers, was transferred to train dispatchers who were not subject to the Telegraphers' Agreement. As a result three full time telegraphers were eliminated.
The claim herein is that the work be returned to telegraphers and that
compensation be paid to the senior idle extra telegraph employs.
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The Telegraphers' contention is that the work -belongs to telegraphers by
virtue of the Scope Rule in the Agreement.
The Carrier takes the position that the work in question can properly be
performed by train dispatchers where the CTC equipment is located in a train
dispatcher's office.
The Carrier raises a further question of the authority of this Board to
resolve the issue. It asserts that the matter involves a jurisdictional dispute
between the Order of Railroad Telegraphers and the American Train Dispatchers' Association and that this Board therefore has no jurisdiction to hear
and decide said dispute.
The question of authority of the Board to hear jurisdictional disputes has
come before this Board many occasions. The consensus of opinions in these
awards clearly indicate that the Board recognizes it is without authority to
pass upon these disputes.
In Award 4452 (Referee Carter) the Board outlined its reasoning for the
holding that it lacked jurisdiction and stated that the matter involved a jurisdictional dispute. It remanded the case.
In Award 4768 (Referee Stone) the Board pointed out that when the
duties were originally assigned to the two crafts, CTC was not in operation.
Hence, it determined that the proper assignment of CTC duties constituted a
jurisdictional dispute and cited the holding in Award 4452.
Awards 8143 (Referee Elkouri) and 9209 (Referee McMahon) involve the
same parties as the instant dispute and a similar factual situation. Both awards
refer to Awards 4452 and 4768 and concur in the opinions therein. The Board
in both cases (between the same parties) finds that a jurisdictional dispute
exists and determines that it is without authority to hear and decide the
matters. It accordingly remands the cases to the interested parties for
negotiation.
In addition to the above cited cases, the Board has remanded cases involving jurisdictional disputes in numerous cases which are not herein individually
reviewed but are cited as support for the opinion herein, to wit: Awards 4769,
6224, 6825, 8458, 8460, 8544, 8660, 10303, 10725, 11161, 11821, 14341 and 14342.
It must be noted that the instant case presents the same question of jurisdictional dispute as in the above cited case.
The Board must conclude that the jurisdictional dispute in the instant
case requires that it recognizes that it is without authority or jurisdiction to
hear and determine the instant claim. The matter should be remanded to the
parties for negotiation and in case of failure, to the National Mediation Board
which is the proper forum for final disposition.
In view of the fact that the determination has been made that a jurisdictional dispute exists, there is no need to discuss the issue raised by the
Carrier relating to unnamed Claimants nor to dwell upon procedural matters
connected therewith.
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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 does not have jurisdiction
over the dispute involved herein.
AWARD
Case remanded in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 24th day of May 1966.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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