Award No. 18232 Docket No. TE-18203

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Paul C. Dugan, Referee

STATEMENT OF CLAIM: Claim of the General Committee of the Transportation Communication Employees Union on the Soo Line Railroad, that:

1. Carrier violated the agreement between the parties when it required or permitted Conductor of Train No. 20 to copy a train order at Auburndale, Wisconsin, 9:50 P. M., October 6, 1967.

2. Carrier shall compensate Telegrapher A. T. Mallek eight hours pro rata at the Auburndale rate shown in agreement, plus subsequent increases.

EMPLOYES' STATEMENT OF FACTS:

(a) STATEMENT OF TAE CASE

The dispute involved herein is predicated on various provisions of the collective bargaining agreement, entered into by the parties effective July 1, 1956. Claim was submitted to the proper officers of the Carrier, at the time and in the usual manner of handling, as required by agreement rules and applicable provisions of law, The dispute was discussed in conference between representatives of the parties on April 30, 1968.

The controversy arose on October 6, 1967, when the conductor of train No. 20 was required to copy train order No. 174 at Auburndale, Wisconsin. Since February 20, 1963, no telegrapher positions have been maintained at that station.

Employes contended in the handling on the property, and now contend before the Board, that certain provisions of the collective bargaining agreement were violated. (These provisions are specifically set out in Section (d) hereof, Rules Relied On.) Carrier contended: (1) that an emergency existed which, under agreement rules, licensed the action complained of, and left Carrier free of any wage liability; and (2) in the alternative, the Claimant was not a proper claimant.

(b) ISSUES

The chief issues are:

(1) At the time the train order in question was copied, and under the circumstances of record, did there exist an

Claim was instituted "or 8 hours' pay at the pro rata rate of Aubu,ndale (at the rate shown in the July 1, 1956 schedule, plus subsequent increases) on behalf of "the oldest idle telegrapher and in the event all extra operators were working on this date the claim should then be paid to the senior unassigned operator nearest the point of violation." It was subsequently amended, naming A. T. 1Vlallek as Claimant. Mr. Mallek at this time held a regular assignment as third trick operator at Stevens Point Yard Office with a Saturday through Wednesday work week and Thursday and Friday rest days.

Copies of schedule agreement, effective July 1, 1956, and supplerients thereto, between the parties to this dispute, are on file with the Board nn l are made a part of this record by reference.

OPINION OF BOARD: The Organization contends that Rule 20 of the Agreement governing "Train Orders" and Section (1) of the Memorandum of Agreement of November 23, 1945 were violated by Carrier when on October 6, 1967 Conductor Klein of train No. 20 was permitted and required to copy and repeat train order No. 174, and that Claimant, who was on his rest day, should be paid eight (8) hours at the pro rata rate because of said violation.

Carrier's defenses to this claim are: (a) that an emergency existed because of train No. 7 going on duty at 8:45 11. M. and departing Stevens Point at 10:55 P. M. due to Stevens Point being blacked 20 minutes by switch engine, and therefore Section (2) of the Memorandum of Agreement, which defines "emergencies" and the exception of emergencies under SectiL,n (1) of said Memorandum of Agreement permitted the Conductor in this instance to copy said train order without violation of the Agreement; (b) that Claimant was a regularly assigned cmploye and not a proper claimant inasmuch as the second paragraph of Rule 20 provides payment only to the "senior unassigned Telegrapher."

Carrier's Superintendent, C. A. Jacobs, in his letter dated October 19, 1967, addressed to the Organization's District Chairman, J. W. Staege, alluded to the fact that: "The train sheet bears a notation, 'Stevens Point 20 min. blocked by switch engine?" Does such fact create an emergency as desined in Section (2) of the Memorandum of Agreement, and which section r;·ads as follows:

"(2) Emergencies as herein specified shall include casualties or accidents, engine failures, wrecks, obstruction of tracks, washouts, tornadoes, storms, slides or unusual delays due to hot box or break-intwo that could not have been anticipated by dispatcher when train was at last previous telegraph office, which would result in serious delay to traffic."

We do not find that art "emergency" existed in this instance as contemplated by said Section (2) of the Memorandum of Agreement. To us, "obstruction of tracks" does not msan obstruction by an operating switch engine. No evidence was offered by Carrier to show that the aforementioned switch engine was inoperative ox could not be moved or was restricted through unforeseen and uncontrolled circumstances from being moved from its position of blocking the track. Thus failing to prove that a "perplexing contingency" or "complication of circumstances" indicated an unforeseen and long delay in blocking said track, we are compelled to deny Carrier's assertion that an "emergency" did in fact exist under all the circumstances existing :it said time and place.

Second, in regard to Carrier's second defense to this claim that the second paragraph of Rule 20 provides payment only to "senior unassigned telegrapher" and not to a regularly assigned employe such as Claimant herein, or an unassigned telegrapher means an idle extra list telegrapher, it is seen that said paragraph provides as follows:

"RULE 20. TRAIN ORDERS

m e .. + s

When employes not covered by this agreement handle train orders at points other than referred to in first paragraph of this rule and under conditions other than those enumerated in paragraph (2) of Joint Train Order Agreement (see page 68), senior unassigned telegrapher will be paid one day's pay for each such instance."

It is undisputed that Claimant herein was on his rest day on the day in question. Is he a "senior unassigned employe" as contemplated by said Rule 80? The Organization contends that Carrier has in the past on many occasions considered a "senior unassigned telegrapher" to mean a telegrapher holding a regular position five days per week but unassigned on his rest days, as well as an extra telegrapher, and allowed payments to such employes when train orders were copied by other than telegraphers. and cited specific instances where this procedure was followed by Carrier.

Carrier has cited a recent Award of this Board, Award No. 18064, involving the same parties to this dispute and a similar issue as herein, the only factual distinction being that Claimant, who is also the same Claimant as in this instant dispute, was working as an extra telegrapher on a hold-down in said Award No. 18064, whereas in this dispute be was working as a regularly assigned telegrapher. In said Award No. 18064, in regard to past practices, the Board held: "As to past practice arguments, the Board has consistently held that where provisions of an Agreement are clearly unambiguous, they sball prevail over conflicting practices and either party to the A,zreement may `,nsist upon its rights thereunder at any time." The Board, in said Award No. 18064 went on to say: "The Board has also held that payments by operating officers are not determinative of the proper interpretation of rules negotiated by others . . . ." With these conclusions we do not agree and therefore find that ,aid Award No. 18064 is not controlling in the determination of this dispute.

Evidence of custom and past practice may ba introduced to sanction assertions that clear language of the contract has been amended by mutual action or agreement of the parties to said contract. Finding that the parties hereto, by past practice, have considered a regularly assigned telegrapher on his rest days to be a "senior unassigned telegrapher," we find that Carrier violated the Agreement and the claim is sustained.

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, 1084;

That the Agreement was violated.

AWARD