NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Arnold Zack, 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 Company, that:
1. Carrier violated the Telegraphers' Agreement when on Tuesday, February 27, 1962, it caused, required and permitted Track Supervisor Mr. J. F. Morrow, an employe not covered by the Telegraphers'
Agreement, to copy a lineup showing train locations and movement, on
telephone at Shelbyville, Kentucky, from the Dispatcher in Louisville,
Kentucky, thereby performing communication work which was a
matter of record, and after repeating same to the Dispatcher, handle
and make delivery of said lineup at Shelbyville, Kentucky for movement of track motor car between Shelbyville and Floyd Street Tower,
Louisville, Kentucky, at 6:03 P. M. and refused to use Claimant B. F.
McFarland, Agent-Telegrapher, Shelbyville, who was ready and available, but was not called to perform this service, which was outside his
assigned hours.
2. Carrier shall compensate regular assigned Agdnt-Telegrapher
B. F. McFarland, Shelbyville, under Rule 10, Call Rule, for one (1)
call (two hours and forty minutes) at one and one-half times the
Shelbyville, Kentucky, Agent-Telegrapher pro rata rate of $2.53 per
hour, total $10.12 for Tuesday, February 27, 1962.
EMPLOYES' STATEMENT OF FACTS: Shelbyville, Kentucky, is located
on the Louisville Division of this Carrier's property. There is a negotiated position of Agent-Telegrapher with assigned hours and work week of Monday
through Friday, 8:00 A. M. to 5:00 P. M. Claimant B. F. McFarland is the
regularly assigned Agent-Telegrapher at Shelbyville.
On Tuesday, February 27, 1962, at 6:01 P. M.,
which was
a time when the
Agent-Telegrapher McFarland was not on duty, Track Supervisor J. F. Morrow
came on the Dispatcher's telephone at Shelbyville, Kentucky, and asked for a
lineup between Shelbyville, Kentucky, and Floyd Street Tower, Louisville, Ken-
"RULE 10. CALLS
(a) Except as otherwise provided in these rules, employes called
to perform work outside of established hours will be paid a minimum
of two (2) hours and forty (40) minutes at time and one-half rate for
two hours and forty minutes' work or less, additional time calculated
on minute basis at time and one-half rate.
(b) For work in advance of and which continues to starting time
of regular work period, employes will be paid a minimum allowance of
one hour at time and one-half rate for one hour or less, additional time
calculated on minute basis at same rate."
"RULE 44.
TERMS OF AGREEMENT
This agreement supersedes and cancels all former agreements, but
does not, except where rules are changed, alter former accepted and
agreed to practices, working conditions or interpretations.
This agreement is revised as of September 1, 1949 and shall continue in effect until thirty (30) days' written notice is given by either
party to the other of desire to revise or modify in accordance with
the provisions of the Railway Labor Act."
(Exhibits not reproduced.)
OPINION OF BOARD:
At approximately 6 P. M. on Tuesday, February
27,1962, approximately one hour after agent-telegrapher McFarland had completed his tour of duty at Shelbyville, Kentucky, Track Supervisor J. F. Morrow
used a company telephone in his own office to receive and copy a lineup from
the dispatcher on duty at Louisville. Organization filed the instant claim for
call in pay for work which it asserts should have been performed by the
Claimant.
The Organization argues that the Scope Rule reserves the disputed work
to employes covered by the Agreement; that this Board has held that copying
and delivering train lineups has traditionally been telegraphers' work; and that
even if there have been violations of the Claimants' rights in the past, this
Board has upheld the right of covered employes to such work despite occasional
unauthorized encroachments thereon.
The Carrier argues that track supervisors and other employes outside the
Organization have always copied lineups without protest; that the language of
the Agreement does not sustain the exclusivity claim of employes to this work;
that Organization efforts to change the Agreement to grant such exclusivity
have been unsuccessful, and that therefore, in the light of prior Awards of this
Board, the Claim must be denied.
This Board has, in a substantial number of awards, held that the petitioner
must show by a preponderance of competent evidence, a system wide practice,
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custom and tradition of covered employes performing the claimed work to the
exclusion of all others. (Perelson 14538.)
The Organization has not met the burden of proof in this case. Track
supervisors and others have traditionally received and copied lineups without
prior protest from the Organization. Accordingly the claim must be denied.
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 Employe 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
That the Agreement was not violated.
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 25th day of July 1968.
Keenan Printing Co., Chicago, 111.
Printed
in U.S.A.
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