Award Number 17700
Docket Number TE-16324
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
James R. Jones, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
MISSOURI PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of the
Transportation-Communication Employees Union on the Missouri Pacific
Railroad (Gulf District), that:
1. Carrier violated The Telegraphers' Agreement when, at 6:50 A.M.,
January 26, 1965, it required and permitted Trainmaster H. E.
Handley, Jr., Harlingen, Texas, to transmit communication direct
to clerical employe H. G. Smith at Bay City, Texas, over telephone at a time the Agent-Telegrapher at Bay City, Texas, was
off duty. Trainmaster Handley, Jr. used telephone in his office
at Harlingen to commit this violative act. Both employes are
outside the coverage of The Telegraphers' Agreement.
2. Carrier shall compensate the senior idle telegrapher (extra or
on rest day) 8 hours pro rata prevailing rate for violation committed by Trainmaster Handley at Harlingen; Also, shall compensate Agent-Telegrapher at Bay City, Texas, One Call, three
hours pro rata rate for the violation at Bay City, Texas.
3. Carrier shall pay interest at the rate of six percent per annum
on all sums due and withheld due to the violative acts mentioned above.
EMPLOYES' STATEMENT OF FACTS: Harlingen, Texas, is located
on the Kingsville Division of the Missouri Pacific Railroad. There are two
positions under the Agreement at the Yard Office with assigned hours of
2:00 A.M. to 10:00 A.M. and 4:00 P.M. to 12:00 Midnight, seven days per
week. The Trainmaster's Office is located 1.1 miles from the Yard Office, in
the Freight Station.
On January 26, 1965, at 6:50 A.M., instead of permitting and allowing
the Telegrapher on duty at the Yard Office to perform the work of his position, Trainmaster Handley used the message phone in his office and contacted
the clerical employee at Bay City, Texas, and transmitted the morning report
of trains to the Clerk for delivery to Superintendent A. K. McKeithan, who
at that time was tied up at Bay City.
Bay City, Texas, is located on the same Division of the same Railroad 86
miles southwest of Houston. There is one position under the Agreement at
this point and it is classified as. Agent-Telegrapher, with assigned hours of
8:00 A.M. to 5:00 P.M., six days per week. There is one clerical position not
under the Agreement with assigned hours of 11:00 P.M. to 7:00 A.M.
not "control transportation." The letter
of declination is quoted below for the
ready convenience of your Board:
"June 3, 1965
K 279-611
Mr. R. T. Phillips
General Chairman-TCU
P. O. Box 456
Palestine, Texas 75801
Dear Sir:
Reference to your letter dated April 10, 1965, file F-6-577, appealing
from the decision of General Manager D. J. Smith claim on behalf of
'senior idle telegrapher (extra or on rest day)' for eight hours at
the pro rata rate on January 26, 1965 when it is alleged that
Trainmaster H. E. Handley, Harlingen, Texas, transmitted a communication to a clerical employe at Bay City, Texas, over the
telephone.
District Chairman Vezorak fabricated a message
which he alleged
was transmitted by Trainmaster Handley to a clerk at Bay City.
The information that Trainmaster Handley telephoned the clerk at
Bay City concerned the switcher at Harlingen and was for the
personal use of Superintendent McKeithan. The information is ordinarily furnished the superintendent orally and does not in any
manner 'control transportation."
The only comment District Chairman Vezorak has to make in reply
to Superintendent McKeithan's letter of March 23, 1965 was, 'Next
to last paragraph of your letter is not worthy of comment .
Evidently the District Chairman was unable to express a valid
reason for not accepting the Superintendent's explanation.
In view of the foregoing, claim is without merit or rule and is hereby
declined.
Yours truly,
/s/ B. W. SMITH"
6. Conference was held and the General Chairman made available for inspection the so-called "morning report"
which he contended the Trainmaster
had telephoned the clerk at Bay City. He was advised during conference that
the Trainmaster did not telephone the "morning report" as he alleged, and
the General Chairman was again advised that information concerning the
condition of the railroad is regularly telephoned the Superintendent by subordinate officials of the Carrier.
The General Chairman disputed Carrier's statements that Trainmasters
and other Carrier officials regularly telephoned information to the Superintendent regarding the performance of yard engines and trains in their territory; however, the General Chairman offered nothing to support his contention that such a practice was contrary to any role of the Telegraphers'
Agreement.
OPINION OF BOARD:
Petitioner claims that Carrier violated Rule 1,
the Scope Rule, of the Agreement when it permitted Carrier's trainmaster
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to transmit a morning report by telephone on January 26, 1965. Petitioner
contends that such transmission of morning reports has been, by tradition, the
exclusive work of telegraphers.
It is axiomatic that the burden of proof is on the Claimant. In this case,
the Claimant must first establish by the preponderance of evidence that
Carrier's official did, in fact, transmit the morning report on the day in
question. Second, Claimant must prove that by custom and tradition, such
transmissions are the exclusive work of telegraphers in order to establish a
violation of Rule 1.
Claimant contends that the morning report as contained in Exhibit 1 was
transmitted by Trainmaster Handley to a clerk thereby depriving work for a
Telegrapher. Carrier denies that the morning report contained in Exhibit 1
was indeed transmitted by Trainmaster Handley. Carrier contends that the
transmission from Trainmaster Handley to the clerical employee at Bay City
was merely information on a switcher for the personal use of Carrier's Superintendent McKeithan.
Claimant must prove all elements in its claim which are not accepted
by the Carrier. In this case, there is conflict on the basic question of
whether or not Carrier's officer did actually transmit the morning report.
Claimant must introduce more probative evidence to establish this first
element of his case.
Having failed to prove that Trainmaster Handley did, in fact, transmit
the morning report, there is no need for this Board to rule on the other
questions raised in this case.
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 has jurisdiction over the
dispute involved herein; and
Claimant has failed to establish its burden of proof that Carrier's Trainmaster Handley transmitted the morning report.
AWARD
Claim dismissed.
NATIONAL
RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of January 1970.
Central Publishing Co., Indianapolis, Ind. 46206 Printed in U.S.A.
17700