·_,s Award No. 17985
Docket No. TE-18054
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Arthur W. Devine, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
ERIE LACKAWANNA RAILWAY COMPANY
STATEMENT Off' CLAIM: Claim of the General Committee of the
Transportation-Communication Employees Union on the Erie
Lackawanna
Railroad, that:
CLAIM NO. 1
1. Carrier violated the parties' agreement when it required
and/or permitted an employe holding no rights under the agreement to perform the work of a telegrapher and telephoner at Garrettsville, Ohio on March 24, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at
Garrettsville, Ohio for a "call" payment as provided in Rule 9 for
March 24, 1967.
CLAIM NO. 2
1. Carrier violated the parties' agreement when it required
and/or permitted an employe holding no rights under the agreement to perform the work of a telegrapher and telephoner at Ravenna, Ohio on December 9, 1966.
2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at
Ravenna, Ohio for a "call" payment as provided in Rule 9 for
December 9, 1966.
CLAIM NO. 3
1. Carrier violated the parties' agreement when it required
and/or permitted an employe holding no rights under the agreement to perform the work of a telegrapher and telephoner at Ravenna, Ohio on March 1, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at Ravenna for a "call" payment as provided in Rule 9 for March 1, 1967.
-
CLAIM NO. 4
1. Carrier violated the parties' Agreement when it required
- and/or permitted an employe, D. Wilson, Signal Maintainer, holding
no rights under the Agreement, to perform the work of a telegra
pher and telephoner at Ramsey, New Jersey on March 27, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the regular incumbent of the Agent-Operator position at Ramsey for one hour overtime at the time and a half rate
of the position.
CLAIM NO. 5
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe, Track Foreman Mariond, holding no
rights under the Agreement, to perform the work of a telegrapher
and telephoner at Middletown, New York, on May 8, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) a day's
wages at the rate of the Operator-Clerk position at Middletown, New
York.
In the event there are no extra men available, Carrier shall
compensate the regularly assigned incumbent of the aforementioned
position in like manner.
CLAIM NO. 6
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner at Allendale,
New Jersey, on June 7, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at Allendale, New Jersey, for a "call" payment as provided in Rule 9 of the
Agreement for June 7, 1967.
CLAIM NO. 7
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner on February 6,
1967, at Monroe, New York.
2. Carrier shall, because of violation in (1) above, be required
to compensate the regular incumbent of the Agent-Operator position
at Monroe, New York for a "call" payment as provided in Rule 9
of the Agreement.
-
CLAIM NO. 8
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement,
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to perform the work of a telegrapher and telephoner at Monroe,
New York, on the days listed below: February 17, 1967 and two on
March 14, 1967.
2. Carrier shall, because of violations in (1) above, be required
to compensate the regular incumbent of the Agent-Operator position
at Monroe, New York, for a "call" payment as provided in Rule 9
of the basic working Agreement.
CLAIM NO. 9
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe, J. Ribaudo, Track Foreman, holding
no rights under the Agreement, to perform the work of a telegrapher
and telephoner at Monroe, New York, on April 3 and on April 28, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the regular incumbent of the Agent-Operator position
at Monroe, New York for one hour overtime at the time and a half
rate of the position.
CLAIM NO. 10
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner on May 11,
1967, at Monroe, New York.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) a day's
wages, as provided in the Agreement.
In the event there were no extra employes available, Carrier
shall compensate the regularly assigned incumbent at the pro rata
rate of the position.
CLAIM NO. 11
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner at Monroe,
New York, on May 25, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at
Monroe, New York, for a "call" payment as provided in Rule 9 for
May 25, 1967.
CLAIM NO. 12
1. Carrier violated the parties' agreement when it required
and/or permitted an employe holding no rights under the agreement
to perform the work of a telegrapher and telephoner at Bath, New
York on April 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24,
25, 26, 27, 28 and May 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18,
19, 22, 23, 24, 25, 26, 29 and 31, 1967.
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2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at Bath,
New York for a "call" payment as provided in Rule 9 for each day
and date set forth wove.
CLAIM NO. 13
1. Carrier violated the parties' agreement when it required
and/or permitted an employe holding no rights under the agreement
to perform the work of a tclographer and telephoner at Bath, New
York on June 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23,
26, 27, 28, 29 and 30, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at
Bath, New York for a "call" payment as provided in Rule 9 for
each day and date set forth above.
CLAIM NO. 14
1. Carrier violated the parties' agreement when it required
and/or permitted an employe holding no rights under the agreement to
perform the work of a telegrapher and telephoner at Bath, New York
on July 3, 5, 6, 7, 10, 11, 12, 13, 14, 18, 19, 20, 21, 24, 25, 26, 27,
28 and 31, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the incumbent of the Agent-Operator position at Bath,
New York for a "call" payment as provided in Rule 9 for each day
and date set forth above.
CLAIM NO. 15
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a t<degrapher and telephoner at Goshen,
New York, on the dates listed below.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idly employe (extra in preference), for a
"call" payment as provided in Rule 9, on each of the dates listed
below.
In the event there are no extra employes available, Carrier shall
compensate the following regularly assigned employes far a "call"
payment on their rest days as provided in Rule 9.
F. B. Mason-Thursday, January 5, 1967.
J. P. Sweeney-Friday, January 13, 1967.
Charles Rowells-Wednesday, January 18, 1967.
F. B. Mason -Ihursday, January 26, 1967.
J. P. Sweeney- Fri<lsy, Janccary 27, 7967.
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CLAIM NO. 16
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner at Goshen,
New York, on the dates listed below.
2. Carrier shall because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) for a
"call" payment as provided in Rule 9 of the Agreement, on each of
the dates listed below.
In the event there are no extra employes available, Carrier shall
compensate the following regularly assigned employes for a "call"
payment on their rest days as provided in Rule 9.
Charles Howells -Wednesday, February 1, 1967.
J. P. Sweeney -Friday, February 3, 1967.
E. A. Casey-Monday, February 6, 1967.
J. P. Sweeney-Friday, February 10, 1967.
CLAIM NO. 17
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe not holding rights under the Agreement,
to perform the work of a telegrapher and telephoner at Goshen,
New York, on the dates of February 17, 20, 27, 28 and March 3, 9,
13, 14, 1967.
2. Carrier shall, because of violations in (1) above, be required
to compensate the senior idle employe (extra in preference) a day's
wages on each of the dates listed below.
In the event there are no extra employes available, Carrier shall
compensate the following regularly assigned employes for a "call"
payment on their rest days as provided in Rule 9.
Mr. J. P. Sweeney, Friday, Feb. 17, 1967.
Mr. E. A. Casey, Monday, Feb. 20 and 27, 1967.
Mr. A. Verlezza, Tuesday, Feb. 28, 1967.
Mr. J. P. Sweeney, Friday, March 3, 1967.
Mr. F. B. Mason, Thursday, March 9, 1967.
Mr. E. A. Casey, Monday, March 13, 1967.
CLAIM NO. 18
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe not holding rights under the Agreement
to perform the work of a telephoner and telegrapher at Goshen,
New York, on the following dates: March 27, 28, 29, 31, 1967. Also
on April 3, 10, 26, 27, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) for one
17985
day's wages at th; pro rata rate of the former Agent position at
Goshen, New York, on each of the dates listed above.
In the event there are no extra employes available, Carrier shall
compensate the following regularly assigned employes for a "call"
payment on their rest days, as provided in Rule 9 of
the parties'
Agreement:
Mr. E. A. Casey, Monday, March 27, 1967.
Mr. E. A. Casey, Monday, April 3, 1967.
Mr. A. Verlezza, Tuesday, March 28, 1967.
Mr. A. Verlezza, Tuesday, April 10, 1967.
Mr. W. E. Hawkins, Wednesday, March 29, 1961.
Mr. W. E. Hawkins, Wednesday, April 26, 1967.
Mr. 7. P. Sweeney, Friday, March 31, 1967.
Mr. F. B. Mason, Thursday, April 27, 1967.
CLAIM N0.19
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner at Goshen,
New York, on April 20, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) for a
"call" payment as provided in Rule 9 of the Agreement.
In the event there were no extra employes available, Carrier
shall compensate the following regularly assigned employe a "call"
payment on his rest day, as provided in aforesaid Rule 9.
Mr. F. B. Mason, Thursday, April 20, 1967.
CLAIM NO. 20
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe not holding rights under the Agreement
to perform the work of a telegrapher and telephoner at Goshen,
New York, on the following date: Friday, May 19, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) for a
"call" payment as provided in Rule 9 of the Agreement, at the timeand-a-half rate of the former Agent position at Goshen, New York
on the date listed above.
In the event there were no extra employes available, Carrier
shall compensate the following regularly assigned employe for a
"call" payment on his rest day, as provided in Rule 9 of the parties'
Agreement:
Mr. E. P. Beams, Friday, May 19, 1967.
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CLAIM NO.
21
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe not holding rights under the Agreement
to perform the work of a telegrapher and telephoner at Goshen,
New York, on the following date: Monday, April 10, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) for a
"call" payment as provided in Rule 9 of the Agreement, at the timaand-a-half rate of the former Agent position at Goshen, New York
on the date listed above.
In the event there were no extra employes available, Carrier shall
compensate the following regularly assigned employe for a "call"
payment on his rest day, as provided in Rule 9 of the parties' Agreement:
Mr. E. A. Casey, Monday, April 10, 1967.
CLAIM NO. 22
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe not holding rights under the Agreement
to perform the work of a telegrapher and telephoner at Goshen,
New York on the following date: Friday, May 19, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) for a
"call" payment as provided in Rule 9 of the Agreement, at the timeand-a-half rate of the former Agent position at Goshen, New York
on the date listed above.
In the event there were no extra employes available, Carrier
shall compensate the following regularly assigned employe for a "call"
payment on his rest day, as provided in Rule 9 of the parties' Agreement:
Mr. J. P. Sweeney, Friday, May 19, 1967.
CLAIM NO. 23
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe not holding rights under the Agreement
to perform the work of a telegrapher and telephoner at Tuxedo,
New York on the following date: Monday, March 27, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) for a
"call" payment as provided in Rule 9 of the Agreement, at the
time-and-a-half rate of the former Agent position at Tuxedo, New
York, on the date listed above.
In the event there were no extra employes available, Carrier
shall compensate the following regularly assigned employe for a
17985 7
"call" payment on his rest day, as provided in Rule 9 of the parties'
Agreement:
Mr. F. E. Kearns, Monday, March 27, 1967.
CLAIM NO.
24
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner at Tuxedo, New
York, on June 9, 1967.
2. Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) eight
hours' pay at the pro rata rate of the position for the above-listed
date.
In the event that there were no extra employes available, then
the following regularly assigned employe should be compensated for
a "call" payment, as provided in Rule 9, on his rest day:
Mr. E. P. Beams, Friday, June 9, 1967.
CLAIM NO.
25
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner at Tuxedo,
New York, on July 8, 1967.
2. Carrier shall, because of the violation in (1) above, be required
to compensate the senior idle employe (extra in preference) eight
hours' pay at the pro rata rate of the position for the above-listed
violation.
In the event there were no extra employes available, then the
following named regularly assigned employe should be compensated
for a "call" payment as provided in Rule 9, on his rest day.
Saturday; July 8, 1967-Mr. A. F. Girard.
CLAIM NO. 26
1. Carrier violated the parties' Agreement when it required
and/or permitted an employe holding no rights under the Agreement
to perform the work of a telegrapher and telephoner at Goshen, New
York, on June 12, 13, 16, 20, 26, 28, 1967 and July 7, 10, 18, 1967.
2, Carrier shall, because of violation in (1) above, be required
to compensate the senior idle employe (extra in preference) eight
hours' pay at the pro rata rate of the position for each of the above
listed dates.
In the event that there were no extra employes available, then
each of the following named regularly assigned employes should be
17985 8
compensated for a "call" payment as provided in Rule 9, on their
rest days.
Monday, June 12, 1967-Mr. E. A. Casey.
Tuesday, June 13, 1967-Mr. A. Verlezza.
Friday, June 16, 1967-Mr. E. P. Beams.
Tuesday, June 20, 1967-Mr. A. Verlezza.
Monday, June 26, 1967-Mr. E. A. Casey.
Wednesday, June 28, 1967-Mr. W. E. Hawkins.
Wednesday, July 19, 1967-Mr. W. E. Hawkins.
CAR. FILES: Items 812, 814, 827, 835, 828, 836,
805, 811, 813, 824, 825, 832, 829,
830, 833, 834, 852.
COM. FILES:7-G-183, 7-G-184, 15-0-90, 13-M-90.
EMPLOYES' STATEMENT OF FACTS:
(a) STATEMENT OF THE CASE
An Agreement between the Erie Railroad Company and this Union,
effective March 4, 1957, as amended and supplemented, is available to your
Board and by this reference is made a part hereof.
These claims were timely presented, progressed in accordance with the
provisions of the Agreement, including conference with the highest officer
designated by Carrier to receive appeals, and have been declined. The Employes, therefore, appeal to your Honorable Board for adjudication.
These claims arose out of Carrier's change in method of operation
whereby employes not covered by the Telegraphers' Agreement are being
required and/or permitted to copy train line-ups directly from train dispatchers, work that had been assigned to telegraphers by agreement, practice and tradition.
These line-ups are being copied at stations where a telegrapher (AgentOperator) was employed, on duty, ready, willing and able to do the work.
At stations where telegraphers are employed but off duty when the line-ups
were copied, they were ready to respond to calls to do the work; they were
not called. At stations where telegraphers had been recently employed, their
positions abolished and stations closed. All of the stations involved in these
claims had been manned by telegraphers for over sixty years, telegraphers'
positions appearing at these locations in each and every agreement between
the parties since January 1, 1906. The positions preceded that agreement by
an unknown number of years. Likewise, the practice of telegraphers copying
line-ups at these stations and systemwide, preceded the installation of the
telephone on this property.
(b) ISSUES
Employes not covered by the Telegraphers' Agreement copying line-ups
of trains.
17985 9
jected the Organization's proposal and denied the claims based upon the
facts, reasons and authorities shown therein. The affidavits attached to Carrier's November 2, 1967 letter and those furnished in other such cases are
attached hereto as Carrier's Exhibit "C-1" through "C-65". Subsequent ex-
changes of correspondence, except the General Chairman's letter of January
11, 1968, which Carrier was unable to locate, and which will undoubtedly
be included in Petitioner's submission, is identified by the following Exhibits:
Carrier Exhibit "D"-Carrier's letter dated February 6, 1968.
Carrier Exhibit "E"-General Chairman's letter dated February 16, 1968.
Carrier Exhibit "F"-Carrier's letter dated March 14, 1968.
Carrier Exhibit "G"-General Chairman's letter dated March 28, 1968.
Carrier Exhibit "H"-General Chairman's letter dated May 9, 1968.
Carrier Exhibit "I"-Carrier's letter dated May 17, 1968.
Carrier Exhibit "J"-General Chairman's letter dated June 6, 1968.
(Exhibits not reproduced.)
OPINION OF BOARD: The claims in this dispute involve the use of the
telephone by Section Foremen and other employes not covered by the Telegraphers' Agreement in obtaining train lineups directly from the train dispatcher. The Organization contends that such communications are messages
of record and preserved to Telegraphers by the Scope Rule of the Agreement
on this property and industry-wide by General Order No. 27, and particularly
Supplement No. 13 thereto.
The Carrier contends that the performance of such work is not reserved
to Telegraphers by the Agreement and that such lineups have been obtained
from train dispatchers by Section Foremen and other employes requiring
such lineups for many years past.
The Scope Rule of the Agreement reads as follows:
"RULE 1. SCOPE
(a) This agreement shall govern the employment, working conditions and compensation of the following:
Agents (Includes only those in wage scale)
Agent Telegraphers
Agent Telephoners
Manager of Telegraph Offices
Telegraphers, Telegrapher Clerks
Telephoners (Not including telephone switchboard operators)
Telephoner-Clerks
Block Operators
Tower and Train Directors
Towermen
Levermen
Train Starters
Any combination of two or more of the above classifications.
Occupants of any other position listed in the wage scale.
17985 20
(b) The word
'employe', as used in these rules, will apply only
to employes enumerated in paragraph (a) of this rule.
(c) Where Caretakers, Custodians or other similar employes are
employed at stations, the duties of such employe shall not include
any of the work ordinarily perforr;ed by employes enumerated in
paragraph (a) of this Rule, except such work as lighting, heating
and caring for station building, the handling of U. S. Mail and the
protection of other company property generally."
The Scope Ruh, of the Agreement in question as well as the effect of
General Order No. 27, particularly Supplement No. 13, was before this Board
in a dispute between the parties decided by our Award 13335 (Dorsey) wherein
we held:
"The Scope Rule of the Agreement is general in nature. To prevail, Telegraphers have the burden of proving, by a preponderance of
the evidence, that messages of this kind have been transmitted, exclusively on the property by employes covered by the Agreement. Instead, it argues, in effect, that industry wide the transmission of
such information has been, historically, the work of telegraphers.
The work reserved to Telegraphers is not uniform on different
systems even though the Scope Rule of the Telegraphers' Agreements is substantially and sometimes identically the same. What is
reserved to Telegraphers under a Scope Rule, general in nature, is
a matter of proof-not of predilection."
We affirm that statement, and note that it was also affirmed by Referee Dorsey in Award 15163 involving these disputants.
In this dispute Petitioner has presented statements from various telegraphers purporting to show that the work in question has been customarily
and historically performed by telegraphers. Many of these statements are
directed to other work items, and some of them merely refer to train lineups in an offhand manner. Very few of them allege exclusive performance
of handling train lineups to telegraphers.
On the other hand, Carrier denies that the handling of train lineups is
work that is exclusively reserved to telegraphers by history, custom and
practice and has submitted numerous statements from train dispatchers,
section foremen and other employes to the effect that over a long number
of years such communications have taken place directly between train dispatchers and employes other than telegraphers. These statements indicate
that on occasions train lineups are also obtained from telegraphers, but not
exclusively. Th,. fact that emplcyes other than telegraphers on some occasions copy train lineups at locations where operators are on duty does
not constitute a violation of the Agreement, since the work is not exclusively
that of telegraphers. The evidence in this dispute preponderates in favor of
Carrier. We also cannot ignore the attempt of the Organization to obtain a
revision of the. rule which would have granted the handling of train lineups
and other communication work to employes covered by the Agreement. The
Board has previously held that to ask for a charge in the rule indicates that
it does not cover that which it seeks to secure by the change. Awards 14594
(Dorscy), ·539 (Fannilten) and 15488 (Zumas).
:7985 21
The Organization relies, to some extent, upon Awards 12942 and 12944
(Wolf), involving similar issue between these parties. We have examined
those awards and find that decision that the Agreement was violated was
based upon Carrier's failure, in the handling on the property, to properly
refute the contentions of the Petitioner. We therefore do not find them to
be controlling in the disposition of the claims presently before us.
In view of what is said above we must hold the claims to be denied.
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
That the Agreement was not violated.
AWARD
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 June 1970.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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