NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TE-8373
"(Brotherhood of Railway, Airline and Steamship Clerks,
(Freight Handlers, Express and Station Employes
((Formerly The Order of Railroad Telegraphers)
PARTIES TO DISPUTE:
(The New York, New Haven and Hartford Railroad Company
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad
Telegraphers on The New York, New Haven and Hartford
Railroad that:
1. The Telegraphers' Agreement was violated when, commencing on
or about May 15, 1954, Carrier improperly assigned to employes not subject
to said Agreement, the duty of operating CTC machine in South Station, Boston,
Mass.
2. The Centralized Traffic Control machine or machines placed in
operation in South Station, Boston, Mass., on or about May 15, 1954, shall
be operated by employes under the coverage of the Telegraphers' Agreement.
3. Until the violative condition is corrected by assignment of
employes under the Telegraphers' Agreement to each of three eight (8) hour
shifts, seven days per week, Carrier shall compensate each of three senior
idle spare employes on a day-to-day basis, or if no spare employes available,
to three senior idle regular employes, the equivalent of eight (8) hours
(one day's) pay at the appropriate rate.
OPINION OF BOARD: On May 15, 1954, Carrier placed in operation a Centralized
Traffic Control machine, commonly called a CTC machine,
at South Station, Boston and assigned its operation to train dispatchers,
employes outside the coverage of the Telegrapher's Agreement.
The O.R.T. contends that under the language of the scope rule of
the Telegrapher's Agreement the Carrier is required to assign employes under
that agreement to operate the machine and that Carrier is in violation of
the provisions of the Agreement by assigning the operation of the CPC machine
to employes outside the Telegrapher's Agreement.
The claim of the Telegraphers arising out of this dispute was
denied by Carrier and the Organization appealed the claim to the Third
Division, National Railroad Adjustment Board, where it was assigned Docket
\o. TE-8373.
Award Number 19313 Page 2
Docket Number TE-8373
In its presentation to the Board, Carrier argued that the case
should have been subject to negotiation on the property among all parties
concerned, i.e., Carrier, the Telegraphers and the Dispatchers. Carrier
argued that the case should be dismissed for failure to give notice and
opportunity to be heard to the Train Dispatchers. The Board declined to
give notice to the Train Dispatchers or to send back the case to the property
and Referee D. F. McMahon was appointed to sit with the Third Division and
in Award 8773 handed down April 8, 1959, he sustained the claim of the Telegraphers.
Subsequently, Carrier instituted an action in Federal District
Court to enjoin the enforcement of Award 8773 and to have it declared null
and void.
On January 22, 1962, Chief Judge Campbell declared Award 8773 to
be null and void and the Third Division was enjoined from proceeding further
until due notice was given the Dispatchers. The Judge stated in part "the
Board is further enjoined from proceeding with this jurisdictional dispute
unless and until due notice is given the Dispatchers as required by statute".
On June 19, 1962 the Organization, O.R.T. requested that the National
Railroad Adjustment Board reopen TE-8373, provide notice to the train dispatchers and hold a hearing
On July 27, 1962 a labor member of the Board moved to reopen
Docket TE-8373 but the motion was rejected and later, on April
11,
1963, the
labor members of the Board requested the National Mediation Board to appoint
a Referee to sit with the Third Division and make an award in Docket TE-8373.
The Carrier members of the Board instructed the NMB of their opposition to
the petition of the labor members of the National Railroad Adjustment Board
and urged that the petition be denied on the basis of Judge Campbell's decree
and alleged observance of the Telegrapher's failure to exhaust their administrative remedies.
On April 26, 1963 the National Mediation Board appointed D. F.
McMahon as a Referee to sit with the Third Division in the matter of TE-8373.
In July of 1963, the Third Division, with Referee McMahon, issued
an order to give notice to the Train Dispatchers and further decision was
reserved until such notice could be given and the cause could be set for
hearing.
Award Number 19313 Page 3
Docket Number TE-8373
Notice was given in the manner customary at the time and a hearing
was held on October 8, 1963. The American Train Dispatchers Association
refused to participate but some individual train dispatchers filed letters
in agreement with the Carrier's position. All parties were afforded a chance
to respond to material presented at the hearing and some did.
Attempts were made to have Referee McMahon return for panel argument
but these were unsuccessful and the dispute was never finally disposed of.
The Supreme Court decision in the Union Pacific case required
further changes in the Board's procedure and, after the Division complied
with the new requirement, a further hearing was scheduled and notice was
given to all parties. The Carrier and the O.R.T. decided to rely upon the
record but the American Train Dispatchers Association filed a submission
dated July 20, 1971.
Referee Thomas L. Hayes was appointed to sit with the Third Division
because of its inability to secure a majority vote of the Division in Docket
TE-8373 and a hearing before this Referee was held on May 23, 1972 for the
purpose of orally reviewing the evidence already presented. Carrier and the
American Train Dispatchers Association had representatives present but the
O.R.T. relied on the record.
Subsequent to the decision of the Federal Court with respect to
Award 8773, Carrier argued that the Board does not have jurisdiction of the
instant dispute on a number of grounds including the allegation that jurisdiction was lacking
pursuant to the Federal Court decree. In making this allegation, Carrier
relied in part on the following language of the Court decree:
"It is clear that the Board has not yet rendered
an award on the merits of Telegraphers' claim. Thus,
if it sees fit, Telegraphers may file a new submission
of this dispute with the Board. This decision in no
way prejudices such a right."
Carrier is asserting in effect that the employes are required by
the Court decision to file a brand new claim on the property and if the case
is not resolved there, then they must file a submission of the dispute with
the Board.
We think that Carrier misreads the language upon which it relies.
We would point out that it is permissive in nature and states that "Telegraphers may file a new subm
not construe this to be a mandate that the O.R.T. begin all over again and
make its initial filing with the Carrier. Moreover, we would point out that
Award Number 19313 Page
4
Docket Number TE-8373
Chief Judge Campbell wrote "the Board is further enjoined from proceeding
with this jurisdictional dispute unless and until due notice is given the
Dispatchers as required by statute". To us this means that proceedings
of the Board may commence after due notice; such notice was given and thereafter proceedings commenc
This Board has reviewed the other contentions of Carrier to the
effect that the Board does not have jurisdiction of the instant dispute and
finds them to be without merit.
Furthermore, the Board has considered the argument of Carrier that
the dispute should be dismissed because the claim is alleged to be so vague
as to prevent the rendering of a valid award.
We see no difficulty in comprehending the claim which is before
the Board. Payment has been requested, until the alleged violation is corrected, of a day's pay for
First; each of three idle spare (extra) employees
on a day-to-day basis;
Second; if no spare employees available, then payment is due to three senior idle regular employ
Third; at the appropriate rate for each.
It has been long held by the Division that where the Claimants
can be ascertained and are identifiable, the claim will not fail because
their names have not been given.
In our judgment, the Board has jurisdiction to consider this case
on its merits and provide for its final disposition.
Returning to substantive arguments, we note that the O.R.T. contends
that on May 15, 1954 when Carrier placed in operation a CTC machine at South
Station, Boston, and assigned its operation to employee represented by the
American Train Dispatchers Association that Carrier violated its agreement
with the Telegraphers.
The record indicates that about 5 years before the instant dispute
arose the O.R.T. and the Carrier added to the Scope Rule a new classification
of work termed "GTC Machine Operators".
Award Number 19313 Page 5
Docket Number TE-8373
In earlier cases, it was held that Telegraphers did not have an
exclusive right to operate GTC machines but is these cases none of the scope
rules included the specific classification "CTC Machine Operators".·
It is the view of the Board that the aforementioned change in the
Telegrapher's Scope Rule constituted an agreement on the part of Carrier
that the operation of CTC machines belonged to Telegraphers.
In their presentation to the Board, the Dispatchers assert that
the scope rule of the Train Dispatcher's Agreement permits them to engage
in CTC operation. We find upon examining the rule that there is no specific
mention of CTC Machine Operators and we come to the question whether other
language contained therein would reserve to Dispatchers the right of operating
CTC machines.
The Dispatchers Agreement states in part that the terms, Trick
Train Dispatcher, Relief Train Dispatcher and Extra Train Dispatcher' "shall
include positions in which it is the duty of incumbents to be primarily
responsible for the movement of trains by train order, or otherwise..." The
Dispatchers rely on the aforementioned words "or otherwise" as a basis for
their alleged right to CTC machine operation. On the other hand, the Telegraphers suggest that the w
to the same extent it exists with respect to movement by train orders, when
other means of controlling train movements are adopted and they say the Dispatchers Agreement does n
negotiated for the operation of CTC machines, specifically.
As was pointed out in panel argument, the Dispatchers in relying
on the words "or otherwise", are in very much the same posture in which the
Telegraphers found themselves, in Award 6224, when the O.R.T. felt the term
"Levermen" gave them coverage of CTC machine operation. One panel member
correctly stated:
"All of the awards on the subject of CTC operation
make it clear that the only means by which operation
of this specialized type of equipment can be brought
under the coverage of an agreement is through negotiation."
In view of the foregoing, we find that the Carrier has violated the
agreement by assigning the operation of a CTC machine to employes outside the
Telegraphers Agreement, thereby depriving the claimants of the opportunity
to perform such work for the period commencing May 15, 1954 until the violative
Award Number 19313 Page 6
Docket Number TE-8373
condition was corrected. Carrier is to compensate, for each day of the
period of violation, each of the three senior idle spare employes on a dayto-day basis, or if no spa
the three senior idle regular employes,by paying the equivalent of eight
hours pay at the appropriate rate.
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:
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 violated.
A W A R D
Claim sustained to the extent set forth in the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
441
&411"Inoe
Executive Secretary
Dated at Chicago, Illinois, this 30th day of June 1972.