THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
1. Carrier violated the Telegraphers' Agreement when, on the 15th day of November, 1963, it required and permitted Dispatcher W. W. Edmiston to transmit a message of "control of transportation" to the telegrapher at Taylor, Texas.
2. Carrier shall compensate the senior idle telegrapher (extra in preference) 8 hours at the pro rata prevailing telegrapher's rate of pay for this violation.
3. Carrier violated the Telegraphers' Agreement when, on the 18th day of November, 1963, it required and permitted Dispatcher R. P. Bailey to transmit a message of "control of transportation" to the telegrapher at Taylor, Texas.
4. Carrier shall compensate the senior idle telegrapher (extra in preference) 8 hours at the pro rata prevailing telegrapher's rate of pay for this violation.
5. Carrier violated the Telegraphers' Agreement when, on the 17th day of November, 1963, it required and permitted Dispatcher V. E. Davidson to transmit a message of "control of transportation" to the telegrapher at Mart, Texas.
6. Carrier shall compensate the senior idle telegrapher (extra in preference) 8 hours at the pro rata prevailing telegrapher's rate of pay for this violation.
1. Carrier violated the Telegraphers' Agreement when, on the 20th day of November, 1963, it required and permitted Dispatcher W. W. Edmiston to transmit a message of "control of transportation" to the telegrapher at Milano, Texas.
2. Carrier shall compensate the senior idle telegrapher, extra in preference, 8 hours at the pro rata prevailing telegrapher's rate of pay.
3. Carrier violated the Telegraphers' Agreement when, on the 22nd day of November, 1963 it required and permitted Dispatcher W. W. Edmiston to transmit a message of "control of transportation" to the telegrapher at Taylor, Texas.
4. Carrier shall compensate the senior idle telegrapher, extra in preference, 8 hours at the pro rata prevailing telegrapher's rate of pay.
1. Carrier violated the Telegraphers' Agreement when, on the 1st day of December, 1963, it required and permitted Dispatcher V. E. Davidson at Palestine, Texas, to transmit a message of "control of transportation" to the Telegrapher at Crockett, Texas.
2. Carrier shall compensate the senior idle telegrapher, extra in preference, 8 hours at the pro rata prevailing telegrapher's rate of pay for this violation.
3. Carrier violated the Telegraphers' Agreement, when on the 2nd day of December, 1963, it required and permitted Dispatcher R. P. Bailey at Palestine, Texas, to transmit a message of "control of transportation" to the Telegrapher at Milano, Texas.
4. Carrier shall compensate the senior idle telegrapher, extra in preference, 8 hours at the pro rata prevailing telegraphers' rate of pay for this violation.
1. Carrier violated the Telegraphers' Agreement when, on the 9th day of December, 1963, it required and permitted Dispatcher R. P. Bailey to transmit a message of "control of transportation" to the telegrapher at Taylor, Texas.
2. Carrier shall compensate the senior idle telegrapher (extra in preference) 8 hours at the pro rata prevailing telegrapher's rate of pay for this violation.
3. Carrier violated the Telegraphers' Agreement when, on the 12th day of January, 1964, it required and permitted Dispatcher J. H. Bradley to transmit a message of "control of transportation"' to the telegrapher at Taylor, Texas.
EMPLOYES' STATEMENT OF FACTS: The claims in these seven cases involve identical violations in principle. They pertain to train dispatchers transmitting communications direct to telegraphers, affecting the operation of trains. The location of the dispatcher is in Palestine, Texas. In the adjoining office to the dispatcher's office at Palestine, Texas is H Office, manned by telegraphers for the express purpose of handling communications. In each of the seven claims, the dispatcher directly transmitted to telegraphers at various locations messages which properly should have been handled by telegraphers, and is work that has been reserved under the Scope Rule of their Agreement.
Claims were made in each instance for the violations and appealed to the highest officer designated to handle claims or grievances, and declined by him. The claims are now properly before your Board for final adjudication.
1. There is an agreement between the parties effective March 1, 1952, on file with your Board, which by reference is hereby made a part of this submission.
2. The seven (7) claims in this Docket are based upon the erroneous presumption of the Employes that the agreement was violated because train dispatchers at Houston and Palestine, Texas telephoned certain work instructions to telegraphers to be delivered to train crews by the telegraphers at points on the Gulf District where the work was to be performed. The facts which we shall relate will conclusively show that these communications were not formal train orders governing the movement of trains as the Employes would lead your Board to believe. We will show that all communications involved in this dispute were instructions and information concerning work to be performed of which a record was not required to be made by law, governmental regulations or Carrier's rules and instructions.
3. Before setting forth the facts in each of these claims, we respectfully direct your Board's attention to the following:
telegrapher, extra in preference' does not meet this requirement, see Third Division Award 11754. Therefore, claim is barred from consideration.
Without prejudice to Carrier's position expressed above, the facts in connection with this claim are as follows: The dispatcher at Houston telephoned work instructions to the telegrapher on duty at DeQuincy for No. 81 at DeQuincy. The instructions involved picking up of cars and a diesel engine at Mauriceville and some cars at Beaumont. The telephone conversation here in dispute involved work instructions for a conductor which the telegrapher at DeQuincy reduced to writing as you have quoted in your Statement of Claim. Such instructions could have been given to the conductor direct, and would not have been a violation of the Telegraphers' Agreement.
5. Train Dispatchers are primarily responsible for the movement of trains by train orders; to supervise forces employed in the handling of train orders; to keep necessary records incident thereto; and perform related work. Train dispatchers have a telephone circuit which enables them to talk to any telegrapher on duty on his territory, and this is the way in which train orders, work instructions, information, or any other communications are transmitted from a train dispatcher to a telegrapher or vice versa.
The method and form of train orders used to govern movement of trains are covered in the Carrier's Uniform Code of Operating Rules which do not conflict with any- rule of the Telegraphers' Agreement. There are no Carrier rules pertaining to work instructions such as arise many times during a dispatcher's tour of duty which is his responsibility along with the telegrapher receiving such instructions.
Work instructions such as those set forth hereinabove are directed by train dispatchers to telegraphers all over the railroad at all hours of the day and night when necessary. Such communications are not normally transmitted through relay offices, but are generally handled directly over the dispatcher's circuit to telegraphers at the point where such instructions are to be delivered.
OPINION OF BOARD: This award covers several claims, all involving instances of a train dispatcher's transmitting communications directly to a telegrapher at another station rather than utilizing a telegrapher then on duty at the dispatcher's station. All of the communications related to the picking up or the leaving of cars at stated stations. One of the communications, illustrative of all, is as follows:
The Employes contend that while none of the communications was a "train order", each was a message relating to the control of transportation and of the type of which a record should be kept. The Employes contend, and this Board agrees, that if the communications were of this nature, they fall within the scope of Rule 1 of their Agreement with the Carrier. See Award Nos. 5181 (Boyd), 5182 (Boyd) and No. 21, Special Board of Adjustment No. 506 (Ray).
The Carrier contends, among other things, that the communications were not of the type of which records are required to be kept. The Employes offer no proof on this point, but rely upon the principle of stare decisis, citing an award handed down on this property in Award No. 21, Special Board of Adjustment No. 506 (Ray). In such award, it was held that the following message, sent by a train dispatcher to a telegrapher at a distant station, related to the control of transportation and was of the kind of which a record should be made:
This Board has difficulty in considering itself bound in the instant dispute by Award No. 21, Special Board of Adjustment No. 506. First, in that award the Special Board of Adjustment was able to find that the message was "of the kind of which a record should be made." In the instant dispute, this essential element of the Employes' case is contested, and no proof to establish it has been advanced by the Employes. Second, this Board, in Award No. 5182 (Boyd), was presented with the transmission and receiving of messages similar to those of this dispute (although neither the transmitter nor, apparently, even the receiver of the messages was a person covered by the Telegraphers' Agreement), and the claims were denied for a failure of proof establishing that the messages were of the type that should be made a matter of record.
For failure of the Employes to carry their burden of proving every element of the claims, the claims must be denied.
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;