STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on the Central of Georgia Railway, that:
EMPLOYES' STATEMENT OF FACTS: The agreement between the parties, effective October 31, 1959, as amended and supplemented, is available to your Board and by this reference is made a part hereof.
This claim was presented and progressed in accordance with the time limits provided by the Agreement up to and including appeal and conference with the highest officer designated by the Carrier to receive appeals. Having failed to reach a settlement, the Employees now appeal to your Honorable Board for adjudication.
Salem and Opelika, Alabama, are located on Carrier's line beween Birmingham, Alabama and Columbus, Georgia. Salem is located 132.9 miles southeast of Birmingham and Opelika is 122.7 miles from Birmingham. Telegraphers are employed at Opelika but Salem is a location where no telegrphers are employed. There is a wayside telephone at Salem, provided so that conductors or other members of train crews may contact the train dispatcher, located at Columbus, Georgia, 18.5 miles southeast of Salem.
On April 3, 1965, conductor J. w. Gunter in charge of Carrier's Train No. 81 called the train dispatcher on this wayside telephone and, as a result of this call, the train dispatcher transmitted Train Order No. 15 to the telegrapher on duty in "YD" office in Columbus, Georgia, and required that telegrapher to relay the train order to conductor Gunter on the same telephone line while the train dispatcher listened in. The procedure was, the train dispatcher transmitted the train order to the telegrapher in Columbus Yard, who, in turn, transmitted the train order to the telegrapher in Columbus Yard, who, in turn, transmitted it to conductor Gunter, who, after copying,
The claim was declined at each and every stage of handling on the property, as is evidenced by the principal exchanges of correspondence hereto attached marked CARRIER'S EXHIBITS #1 through #10. The claim is without any semblance of merit.
The rules and working conditions agreement between the parties is effective October 31, 1959, as amended. Copies are on file with your Board, and the agreement, as amended, is hereby made a part of this dispute as though reproduced herein word for word.
OPINION OF BOARD: On April 3, 1965, Conductor J. W. Gunter, in charge of Train No. 81, called the train dispatcher on a wayside telephone located at Salem, Alabama. There is no agent-operator employed at Salem, Alabama. As a result of Conductor Gunter's call, the train dispatcher transmitted Train Order No, 15 to the Telegrapher on duty in "YD" office in Columbus, Georgia, and required the telegrapher to relay the Train Order to Conductor Gunter on the same telephone line. After copying the Train Order, Conductor Gunter repeated the train order to the telegrapher, who, in turn, repeated the train order to the train dispatcher. The train dispatcher gave the telegrapher "complete" and the telegrapher then gave "complete" to Conductor Gunter.
The Organization and Carrier are in accord on the facts; the dispute concerns itself with the right of Claimant to compensation. The Organization relies on the following provisions of the Agreement:
It has been acknowledged by the Organization that denial Awards Nos. 15618 and 15621 (McGovern) involved the same issue, same rules, same parties, and similar contentions. It is also noted that the Organization does not take issue with Carrier's contention that under the doctrine of stare decisis, this Board must find the more recent awards now controlling the instant issue to be patently erroneous in order to arrive at a diverse conclusion. The doctrine of stare decises is not only a basic and fundamental concept; but also a highly necessary and imperative doctrine required by both Labor and Management for the orderly administration and conduct of their respective functions. However, this Board must never cease to serve its designated purpose of determining disputes under applicable Rules brought into being by negotiation and signatory agreement. Although this Board should always be extremely cautious in overturning a prior Award, it should never be lulled by prior erroneous awards into perpetuating a concept that was never intended to be.
A study of the history of this issue reveals that Referee Vokoun on S.B.A. 269 first interpreted the identical rules as those cited herein (except Memorandum No. 4). Referee Vokoun's Awards Nos. 1, 2, 5, 35, 36, 37, and 38 of S.B.A. 269 sustained claims similar to the instant claim; the only difference in the Vokoun Awards being that the conductor copied train orders directly from the train dispatcher.
Subsequent to the Vokoun Awards (1959), Memorandum No. 4 was entered into providing for the measure of damages. Later in the same year (October 31, 1959), a new Agreement between the parties became effective and Memorandum No. 4 was added. S.B.A. 269 was concerned with disputes on the property involved herein. The Special Board No. 269 interpretation was followed by this Carrier until 1962, in that from the time of the Vokoun Awards until awards arising from the Chicago Great Western property hereafter mentioned, claims similar to the instant claim were paid.
In April of 1962, Referee Ables in Award 10535 arising on the Chicago Great Western property, denied a claim similar to the instant claim. Denial Awards 10872 (Hall) and 12526 (Englestein) on this same property followed Award 10535.
In June of 1967, this Board adopted Awards Nos. 15618 and 15621 (McGovern) which denied claims identical to the instant claim on this same property. The McGovern Awards cited and followed the Chicago Great Western Awards above set out.
Under the rules cited in the instant dispute and relied upon by the Organization, this Board finds:
Under the undisputed facts Conductor Gunter, not covered by the Agreement herein, made a phone call to the dispatcher and copied a train order transmitted by a telegrapher at the direction of the dispatcher while the dispatcher listened in on the line. It is true that a telegrapher was called to transmit the train order. However, in the absence of emergency conditions, "Memo. Agreement No. 3" was undoubtedly and undeniably violated; Conductor Gunter did receive a train order over the telephone.
It is a fundamental rule of the Board that when specific exceptions to a rule are recited-none others will be implied. The only exceptions recited in "Memo. Agreement No. 3" are emergency exceptions. The fact that the train order was ultimately transmitted by a telegrapher does not constitute an exception rule, and this exception will not be implied.
It appears to this Board that the Carrier in this instance is attempting to accomplish something indirectly that it is prohibited from doing directly under the terms of a good faith agreement.
That part of the Agreement pertaining to the issue involved in this dispute is cited in this Award. These provisions are not ambiguous; they are clear and concise. Except under emergency conditions, which are enumerated, Train and/or Engine Service employes will not be required or permitted to call dispatchers on the telephone in connection with train movements or take train orders over the telephone.
This Board finds that Awards 15618 and 15621 erroneously failed to demonstrate the true intent of the Agreement under the clear concise provisions thereof.
Having failed to find that an enumerated emergency existed in this instance, this claim will be sustained.
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: