Prior to August 1, 1939, there was no rule that required motor car operators on this property to obtain a lineup on trains before starting out on a trip. It was their responsibility, however, to keep clear of trains. This was ordinarily accomplished by listening and watching for smoke from approaching locomotives, flagging around curves, etc. It was also the custom to inquire of on-duty Telegraphers as to time of trains expected in the vicinity. It was also a practice to obtain the same information directly from Dispatchers by telephone.
On August 1, 1939, "Rules for Operator of Track Cars" were issued, and Rule 5 thereof stipulated that, "The person in charge of the operation of track cars must inform himself of the movement of trains when possible." Under this rule motor car operators continued to obtain oral information from both on-duty Telegraphers and Dispatchers.
It was not until April 7, 1945, that the rules were modified to provide that employes operating track ears were to "obtain information in writing regarding trains when practicable", and, on August 12, 1945, Form 386, Train Location Report, was put in use. "Practicable" was interpreted to mean that an Operator was readily available, employed, and on duty. Motor car operators continued their practice of obtaining lineups through alternate methods at all other times.
While track lineup disputes (and conflicting Awards) had begun to appear before the Board, it was not until issuance of Third Division Award 3671 that this subject became an issue on this property.
A dispute arising from the handling of a track lineup on Sunday, December 7, 1947, was progressed to the Board. On February 17, 1949, Referee Francis J. Robertson handed down sustaining Award 4320. This Award (which was vigorously attacked in s. dissent by the Carrier members of the Board) turned-in Referee Roberts,on's words--on the issue of whether or not,
. under the circumstances, the work performed by the Section Foreman in this instance can be considered as the work of the Telegrapher at Ottertail."
In 1962 the matter of S~=etion Foremen, and others, handling track lineups again became an issue of dispute between the parties. This dispute was also referred to the Board, and on October 31, 1967, Referee Edward A. Lynch, in Award 15916, held that the Organization had failed to prove it had exclusive jurisdiction to the work involved on this property.
Copies of schedule agreement between the parties, effective July 1, 1956 and supplements thereto are on file with the Board and are made a part of this record by reference.
OPINION OF BOARD: The issue involved herein is whether or not Carrier violated the Agreement when it failed to use Claimants on their rest days, not a part of any assignment and not filled by relief employes, but instead used employes not covered by the Agreement to perform the work in dispute on said days.
This claim arose as a result of Section Foremen on the various dates involved obtaining train lineups from Operators at distant stations.
The Organization in support of its position relies on the so-called "Unassigned Work Day" Rule, Rule 27, The 40-Hour Week-Rest Day-SundaysHolidays, Section 1, paragraph (n), which provides as follows:
The Organization contends that by history, tradition and custom, employes covered by the Telegraphers' Agreement are assigned the duty of handling lineups; that in 1943 the Carrier allowed a similar claim due to a section foreman calling the dispatcher direct to obtain lineups; that in Carrier's Circular No. 4, dated January 22, 1968, it gave instructions that overtime to agents obtaining track lineups outside of assigned hours would no longer be authorized, thus showing that without question that work of lineups is performed by employes covered by the Telegraphers' Agreement; that under the Rest Day Rules, work on rest days must be assigned by the formula: 1. To a rest day relief employe if one is assigned and available. 2. To an available and qualified extra einploye. 3. To the regular employe on an overtime basis.
Carrier's chief defense to this claim is that the Organization has failed to prove that the handling of lineups on this property belong to telegraphers "exclusively" by history, custom and practice, system-wide.
Carrier, in support of its position, cites Award No. 15916 involving the same parties to this dispute, wherein in said Award this Board concluded that the Organization failed to prove that it had exclusive jurisdiction to the work involved on this property. Reference was made by the Board in said Award No. 15916 to Award No. 4320, in which this Board reached a different conclusion, without discussing the relationship and applicability of said Award No. 4320 in regard to the decision reached by the Board in said Award No. 15916. Further, the Board in Award No. 15916 only discussed and applied the Scope Rule of the Agreement in reaching its decision in said Award No. 15916.
This Board was confronted with an analogous situation in Award No. 17581, with the present referee sitting with the Board, involving the application of a general Scope Rule as in our instant dispute and a similar "Work On Unassigned Days" Rule. The Board concluded that Carrier violated the so-called "Unassigned Work Day" Rule, and cited Award No. 14703 of this Board in support of its conclusion, wherein it was stated: "We are inclined to accept the principle enunciated in those Awards which hold that Rule 10(m) is specific and prevails over any general rule, including the Scope Rules. Under this holding, the question whether the work belongs exclusively to the Agent-Operator becomes irrelevant because it is not a factor essential to the determination of the dispute. This, the believe, is the sounder, the more cogent and the more decisive principle relating to all of the factors concerning the 40-hour workweek and the related work rule on unassigned workdays."
Applying the principles set forth in said Award No. 14703 aforesaid, we find that Carrier violated the terms of Rule 27(n) involving "Work On Unassigned Days", and therefore we must sustain the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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
CARRIER MEMBERS' DISSENT.' TO AWARD 18245,
DOCKET TE-IS317 (Referee Paul C. Dugan)
In Award 18245 the Board has penalized the Carrier because it did exactly what it was permitted to do under the Agreement as previously interpreted by this Board in Award 15916, Referee Lynch, in 1967, which award involved a similar dispute between the same parties.
In Award 15916 the Board found that it was not a violation of the Agreement for other than a telegraph operator to copy train line-ups, at a location where the telegraph operator was either off duty or off on his rest days, from a telegraph operator at a point distant and such actions had the support of a practice of long standing on this property.
From 1967 Carrier continued to have other than telegraph operators copy train line-ups from telegraph operators located at points other than where the line-ups were copied at times when telegraph operators were either off duty or on their rest days and Carrier relied upon, and justifiably so, under the Agreement as interpreted by Award 15916. The organization did not accept the decision in Award 15916 and progressed additional claims to this Board which were sustained on October 30, 1970 in Award 18245.
A fundamental principle which This Beard should follow in order to alleviate much confusion in the railroad industry, thereby lending some semblance of stability to contract rules interpretation, is to adhere to a prior award involving the same issues, the same parties and the same rules unless it is shown that the prior award is palpably erroneous. In the instant case the referee did not adhere to Award 15916 but, instead, practically ig-