NATIONAL RAILROAD ADJUSTMENT BOARD
Arthur W. Devine, Referee
PARTIES
TO DISPUTE:
AMERICAN TRAIN DISPATCHERS ASSOCIATION
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the American Train Dispatchers
Association that:
(a) The Louisville and Nashville Railroad Company (hereinafter
referred to as "the Carrier"), violated the Schedule Agreement between the Carrier and its train dispatchers effective November 1,
1969, Article IV(a) thereof in particular, when it added the names
and seniority standing of R. A. McDonald and J. Williams to the
Cumberland Valley Division Train Dispatchers' seniority roster dated
January 1, 1970.
(b) The Carrier shall now issue a corrected Train Dispatchers'
seniority roster deleting the names and seniority standing accorded
R. A. McDonald and J. Williams.
EMPLOYES' STATEMENT OF FACTS:
There is
an Agreement in
effect between the parties, copy of which is on file with this Board, and the
same is incorporated into this Submission as a part thereof as though fully
set out.
For the ready
reference of
the Board, Articles I(a), IV(a), IV(b), and
IV(i), which are particularly pertinent to this dispute, are quoted here in
full:
"ARTICLE I
SCOPE - DEFINITIONS
CLASSIFICATIONS
(a) Scope:
The term `train dispatcher' as hereinafter used, shall include
night chief, assistant chief, trick, relief and extra train dispatchers.
It is agreed that one (1) chief dispatcher in each dispatching office
shall be excepted from the provisions of this agreement.
ARTICLE IV
SENIORITY DATUM
(a) Seniority Datum:
upon and in effect on
the date of this agreement shall not be
changed." This statement is given the importance and force
of being displayed as the first paragraph of Article 4(a), and
being so listed, L-i intended to convey the understanding that
seniority standing of date of agreement was frozen and not to
be changed; considering that listing of January 1969 had
been in effect .for eleven months, and not subject to
change
under Article 44(b) of agreement. The paragraph that follows
was added to protect future seniority standing of those Extra
Train Dispatchers who had not qualified for listing on roster
of January 1, 1969, but who had qualified during 1969, and
due to be listed on the next seniority roster after qualification; such as Mr. W. G. Hughes. This would not cover either
Mr. McDonald. or Mr. Williams, and was not intended to
do so.
CC: Mr. R. A. MuDonald, ("TD Extra Train Dispatcher
Mr. R. J. Irvin, Jr., GC, ATD
:VIr. L. C. Ross, OC. ATD
The protest was handled on the property in .strict accord with agreement
provisions and the handling is shown by carrier's exhibits "A" through "M".
(Exhibits not reproduced.)
OPINION OP BOARD:
The contention of the Petitioner is that the Carrier
was in error when it added the names and seniority standing of R. A. McDonald and J. Williams to the Train Dispatchers' seniority roster dated .January
1, 1970.
Article IV (a) of the applicable Agreement which became effectixe November 1, 1909, reads in part:
"(a) Seniority Daturn
Seniority standing of train dispatobers as agreed upon an,! in
effect on the date of this agreement shall not be changed.
Seniority of train dispatchers who do not have seniority standing
as such on the effective date of this agreement and those entering
train dispatcher service thereafter shall date from the time service
as such was first performed."
The Agreement in effect prior to November 1, 1969 (effective April 16,
1948 amended December 1, 1957), provided in part:
"Seniority standing as train dispatcher as shown on Division
roster of the effective date of this rule shall not be changed. Those
entering train dispatcher will not acquire a seniority date as train
dispatcher until after they have performed an aggregate of 30 days
of compensated service as train dispatcher when, if accepted, their
seniority will begin as of the first day of compensated service as
train dispatcher. Credit will be given for days worked in the twelve
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months period preceding Deecmuei 1, 1907, except this stall not
operate to give any extra man seniotity over a dispatcher with seniority- dating prior to December 1, 1957. When that would occur, the man
establishing seniority will be given dating just under the dispatcher
bolding seniority prior to December I, 1957.
Qualified train dispatchers not having established seniority will
let used in the order of their initial work as train dispatcher, when
they are available."
The individuals named in the Statement of Claim were not included on
the seniority roster in effect immediately prior to the Agreement of November
1, 1969. They were included on the January 1, 1970 seniority roster with
datings of August 7, 1959 and June 24, 1964, respectively, one being shown
as Chief Train Dispatcher and the other as Assistant Trainmaster, neither
of which positions is included e·ithin the term "train dispatcher" under the
Scope Rule of the Agreement.
It is well settled that seniority exists by virtue of agreement between
employes and employer. (Award 16545.)
It is also well settled that the Board
must apple- Agreement rules as written, and that the Board is not free to
consider the equities of the situation.
P,ased upon our study of the entire record in the dispute, we find that
the individuals named in the Statement of Claim had not established seniority
under the Agreement in effect prior to November 1, 1969, and that they were
not "train dispatchers" as defined in the Agreement when the Agreement
of November 1, 1969 became effective, and that the inclusion of their names
on the January 1, 1970 seniority roster was not authorized by any cited rule
of the Agreement.
FINDINGS: The Third Division of the Adjustment Board, noon 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 respec;.ively 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 violated.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: E. A. Killeen
Executive Secretary
Dated at Chicago, Illinois, this 24th day of September 1971,
Keenan Printing Go., Chicago, Ill. printed in U.S.A.
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