1. Carrier violated the Agreement between the parties when on September 14, 1961, it required or permitted a train service employe on Engine 18 to secure verbal train orders while working between Lakeland and Carters, Florida.
2. Carrier violated the Agreement between the parties when on October 2, 1961, it required or permitted carrier official on Extra 195 North to secure verbal train order while Extra 195 North was working between Haines City and Lake Alfred, Florida.
3. Carrier violated the Agreement between the parties when on October 3, 1961, it required or permitted a train service employe on Engine 667 to secure a verbal train order while working between Lakeland and Carters, Florida.
4. Because of these violations Carrier shall compensate the senior idle extra telegrapher on the Tampa Division for each day, September 14, October 2 and 3, 1961, and if no idle extra telegraphers, the senior idle telegraphers observing a rest day on each of such days, each in the amount of a day's pay of eight (8) hours at the minimum pro rata telegraphers' (telephoners') rate on such seniority district.
5. Carrier violated the Agreement between the parties when on October 12, 1961, it required or permitted Brakeman Jordan on Second 218 to secure verbal train order while working between Dunnellon and North Gibara, Florida.
6. Because of this violation Carrier shall compensate the senior idle extra telegrapher on October 12, 1961, and, if no idle extra telegrapher, the senior idle telegrapher observing a rest day on October 12, 1961, in the amount of a day's pay of eight (8) hours
EMPLOYES' STATEMENT OF FACTS: The Agreement between the parties, effective November 1, 1939, as supplemented and amended, is available to your Board and by this reference is made a part of this dispute as though set out herein word for word.
There are three claims encompassed in this dispute which were handled separately on the property. Inasmuch as the three claims involve the application of the same rules, we have consolidated them into one submission to your Board. We shall refer to the claims arising at Lakeland and between Haines City and Lake Alfred, Florida (paragraphs 1, 2, 3 and 4 of Statement of Claim) as Case No. 1; the claim arising at Dunnellon, Florida (paragraphs 5 and 6 of Statement of Claim) as Case No. 2; and the claims arising on the Tampa Division (paragraphs 7 and 8 of Statement of Claim) as Case No. 3. All the claims here involved were filed and handled in the usual manner up to and including the highest officer of the Carrier and have been declined.
The sole issue in this dispute is whether the claimants had the contractual right to perform the work herein involved. The compensatory claims are only collateral issues in that the Carrier does not dispute the correctness of these claims once the substantive claims of violations are settled.
On September 14, 1961 at 11:05 A. M., Yard Foreman T. P. Turner, Lakeland, Florida, called the train dispatcher at Tampa, Florida, by telephone approximately 30 miles away, and copied the following telegram in lieu of a train order, which reads:
On October 2, 1961, Trainmaster R. M. Beach at 2:30 P. M., called the train dispatcher at Tampa, Florida, a distance of approximately 49.7 miles, and copied the following telegram in lieu of a train order:
mittee could not accept his decision and it would be necessary to give further consideration to this claim (ORT Exhibit 21).
ORT Exhibits 1 through 21, outlined above, depicting the handling on the property, are attached hereto and made a part hereof as though set out herein word for word.
CARRIER'S STATEMENT OF FACTS: The Employes' Statement of Claim fails to state that the territory covered in this dispute involves train operations in Centralized Traffic Control territories and train orders are not in any manner involved in the claim.
The claim is in behalf of the senior idle extra telegraphers, for eight hours at the minimum pro rata telegraphers' (telephoners') rate, for each and every day when employes other than telegraphers secured so-called "verbal train orders" affecting the movement of trains entirely within Centralized Traffic Control territories, as shown in the following table:
Representative of the Organization has taken the position that no employes save telegraphers have any right to call the train dispatcher direct to obtain or secure permission to occupy the track under protection of signals controlled by the train dispatcher, that the information thus obtained was "messages, orders and/or reports of record", and work belonging exclusively to telegraphers under the scope article of their agreement.
The General Chairman was advised that calling the train dispatcher for time and working limits was not in violation of the Telegraphers' Agreement, and was in accordance with Rules 557 and 561 in "Rules of the Operating Department."
The Organization presents several claims, and designates them as Case No. 1, Case No. 2, and Case No. 3.
Case No. 1 refers to claims arising at Lakeland and between Haines 'City and Lake Alfred, Florida. Case No. 2 refers to claims arising at Dunnellon, Florida. Case No. 3 refers to claims arising at Tampa Division, Florida.
The Carrier placed Centralized Traffic Control in operation on the Tampa Division in November of 1953 and in the Ocala Division in 1959. Both divisions being the territory in which it is claimed that claims arose.
The Organization contends that subsequent to the installation of the CTC the Carrier, on the dates set forth in the respective claims, violated the Agreement, by requiring or permitting employes not covered by the agreement to handle "verbal train orders."
The Organization contends that the communications involved in the claims before this Board constitute train orders and, therefore, should have been handled exclusively by the Order of Railroad Telegraphers, under the terms of their Agreement with the Carrier.
An examination of the communications and/or messages involved discloses that they are not train orders, but are what is known as "Track and Time Limit" messages.
The sole issue involved in this case is whether or not the securing of track and time limits is properly within the province of the employes of the Organization.
The Organization, in support of its contention, cites various rules of the Agreement, and in addition cites the Mediation Agreement (National Mediation Board Case A-511) dated June 20, 1938. The rules and agreement are set forth in full in the record.
An examination of the Mediation Agreement discloses that it was entered into "In settlement of employes' request for rule jointly proposed by the representatives of the employes to govern the handling of train orders, messages and/or reports of record by train and engine service employes; it is agreed, in lieu of rule proposed, that train and/or engine service employes will not be required to call dispatchers on telephone in connection with train movements or take train orders over the telephone . . . . (Emphasis ours.)
There can be no question but that the agreement concerned itself with the handling of train orders, messages and/or reports of record. We hold that the words "train movement" in the agreement refers to train movements covered by the words train orders, messages and/or reports of record under consideration in the settlement of the rule proposed.
A dispute, similar to the one in question, was considered and decided by this Board and by Award No. 1, Special Board of Adjustment No. 100. All these awards denied the claims presented therein and held that communications of the type involved in the instant claims were not train orders or messages of record. Therefore, the claims will be denied. See Award No. 1, Special Board of Adjustment No. 100 (Douglass); Award 11161 (Moore); Award 11720 (Hall) and Award 14028 (Hamilton).
The Organization in its submission to the Board lays stress on the fact that the Carrier has settled and/or compromised similar claims on previous occasions. This Board, on any number of occasions, has held that offers of compromise and settlement and previous settlements of claims are not evidence of anything, and not admissible as evidence.
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