(American Train Dispatchers Association

      PARTIES TO DISPUTE:

      (Southern Pacific Transportation Company

      ( Texas and Louisiana Lines


      STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:


      (a) The Southern Pacific Transportation Company (Texas and Louisiana Lines), hereinafter referred to as "the Carrier", violated the Agreement in effect between the parties, Rule 2 (b) thereof in particular, when on August 17, 23, 27, September 1, 3, 9, 16, 22, 23, 24 and 27, 1971 it required and/or permitted an officer, supervisory employes and others not within the scope of said Agreement to perform work covered thereby.


      (b) The Carrier shall now compensate Train Dispatchers V. F. Kapczynski, E. J. Moltz, W. R. Whittington, W. R. Stewmon, W. R. Whittington, T. E. Malcolm, C. L. Frost, W. R. Stewmon, W. R. Whittington, C. Stewart, P. Cain, W. R. Whittington, C. L. Frost and V. F. Kapczynski respectively one day's compensation at Chief Dispatcher's penalty rate for said violations.


      (c) The individual Claimants identified in paragraph (b) were observing rest days on the corresponding dates identified in paragraph (a) and were available for service.


      (d) Violations and Claimants referred to in paragraphs (a) and (b) above on specific dates are as follows:


      (1) V. F. Kapczynski, August 17, 1971 - Division Superintendent E. F. Winterrowd, Lafayette, instructed the conductor of Train No. 58 as follows: "Pick up at Scott SLSF mty box and bring to Lafayette."


      (2) E. J. Holtz, August 23, 1971 - Supervisory Agent H. D. Girouard, Lafayette instructed the crew of Train No. 58 at Crowley, Louisiana as follows: "Pick up at Duson CNW 141140 mty box for Lafayette Yard."


      (3) W. R. Whittington, August 27, 1971 - W. J. Savannah, Agent, Strang, Texas instructed the crew of the Texas City Switcher at Englewood as follows: "Pick u


      (4) W. R. Stewmon, September 1, 1971 - A. J. Manofsky, Supervisory Agent, Beaumont, Texas instructed at Beaumont as follows: "Pick up at Mobil Chemical Viterbo MOBX 94517 ACFX 54682 Chem for Fiberton NC, Weigh at Beaumont."


i
                    Award Number 19794 Page 2

                    Docket Number TD-19851


(5) W. R. Whittington, September 3, 1971 - R. Keenan, Agent AT&SF Railroad, Kountze, Texas instructed SP Train No. 160 at Lufkin, Texas as follows: "Pick up one car lumber at Georgia Pacific Lbr Kountze car No. SP 509636 and handle to Beaumont for weighing, list and bills in box at Kountze."

 (6) T. E. Malcolm, September 3, 1971 - H. D. Girouard, Supervisory Agent, Lafayette, Louisiana i Crowley, Louisiana as follows: "Pick up MKT 6950 mty box at Bob Farm & Garden Scott also EFCX 2355 feed and bring to Lafayette."

 (7) C. L. Frost, September 9, 1971 - A. J. Manofsky, Supervisory Agent, Beaumont, Texas instruct "Pick up at Mobil Chemical Corp, Viterbo, Texas NATX 24710 mty tank Freeport Texas via SP BMT MP."

 (8) W. R. Stewmon, September 9, 1971 - A. J. Manofsky, Supervisory Agent, Beaumont, Texas instru at Mobil Chemical Corp., Viterbo, Texas ACFX 54683, MOBX 94500, MOBX 94531 Chems for Fiberton NC via SP NOR SOU. Weigh at Beaumont."

 (9) W. R. Whittington, September 16, 1971 - W. J. Savannah, Agent, Strang, Texas instructed the Texas City Turn at Englewood, Texas as follows: "Pick up GATX 66204 mty tank now on Pasadena team track."

 (10) C. Stewart, September 22, 1971 - A. J. Manofsky, Supervisory Agent, Beaumont, Texas instruc "Pick up at International Harvester Co. Amelia, Texas IN 24170 mty flat."

 (il) P. Cain, September 22, 1971 - H. D. Girouard, Supervisory Agent, Lafayette, Louisiana instructed the crew of Train No. 58 at Crowley, Louisiana as follows: "Pick up at Scott Feed Store, Scott, La. SP 174118 mty box for Lafayette Yard."

 (12) W. R. Whittington, September 23, 1971 - A. J. Manofsky, Supervisory Agent, Beaumont, Texas instructed the crew of the Port Arthur Local as follows: "Pick up at Mobil Chem Viterbo ACFX 54683 MOBX 94509, MOBX 94514 Chem to Fiberton NC weigh at Beaumont."

 (13) C. L. Frost, September 24, 1971 - F. A. Cunningham, Trainmaster StLSW Railroad, Shreveport, Louisiana instructed the crew of SP Train No. 217 at Shreveport, Louisiana as follows: "At Keithville, La. KCS 1 4571 empty box. Pick up."

 (14) V. F. Kapczynski, September 27, 1971 - R. Keenan, Agent AT&SF Railroad, Kountze, Texas instructed the crew of a local freight at Lufkin, Texas as follows: "Pick up one car lumber at Georgia Pacific Kountze Car No. SP 509240 goes to Beaumont for weighing and forwarding list and bill at Kountze."
                    Award Number _ Page 3

                    Docket Number TD-19851


OPINION OF BOARD: In paragraph (d) of the Claim the Organization. sets forth
 the facts of occurrences on 14 specified dates, which facts
 it alleges, in paragraph (a) of the Claim, prove that Carrier, in each instance,
 violated Rule 2 (b) of the Agreement. The facts are undisputed.

        Rule 2 (b), with emphasis supplied, reads:


          "(b) Chief Dispatchers' and Assistant Chief Dispatchers' Positions. These classes shall include positions in which the duties of incumbents are to be responsible for the movement of trains on a division or other assigned territory, involving the supervision of t dispatchers and other similar employes; to supervise the handling of trains and the distribution of power and equipment incident thereto; and to perform related work."


organization admits that in past practice on the property, employes other than Chief Dispatchers and Assistant Chief Dispatchers issued instructions of the type setforth in paragraph (d) of the Claim; but, it contends even if such practice had "existed 'since time immemorial' if that practice is in conflict with the provisio have a right to insist upon compliance with the clear and unambiguous provisions of the controlling Agreement, which shall prevail over such conflicting practice." We agree with that principle as stated. But the principle is applicable only when its proponent satisfies its burden of proof that Rule 2 (b) clearly and unambiguously vests exclusive right to the involved work in employes classified as Chief Dispatchers or Assistant Chief Dispatchers.

 The Awards of this Division have consistently held that classification provisions identical to or in substance the same as Rule 2 (b) have consistently denied claims that Dispatchers have an exclusive right to issue instructions to local trains concerning the picking up or setting out of cars. This body of case law has precedential value in the absence of proof that its premise is empirical and/or its reasoning sophistry. We find no such defects in the precedent Awards; nor, do w expressly vests an exclusive right in Chief Dispatchers and Assistant Chief Dispatchers to issue instructions to local trains concerning the picking up or setting off of cars.

 In the resolution of this dispute we find no aid in the definition of "equipment" in the publication titled "Official Railway Equipment Register."
                    Award Number 19794 Page 4

                    Docket Number TD-19851.


        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 Employcs involved in this dispute are respectively Carrier _.nd Employes within tae meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjust-,-.ont Board has jurisdiction over the dispuce involv^ hcr~in; and

        that the Carrier dial not vioiat:, the Agreement.


                    A S! A R IT)


        Claim denied.


                        NATIONAL RAILROAD ADJDST1IENT BOARD

                        By Ordcr of Third Division


AT ":LST:
        F\ccutive _°c.:ieTa_:y


Dated at. Chicago, 111inois, this ~3 ' 1
                        .1 day of , - .".

LABOR. MEMBER'S DISSENT TO ANARD N0. 19794, DOCi;-1 TD-19851

REF FREE DORSEY


        Award No. 19794 evades the issue and fails to contribute anything toward We General Purposes of the Railway labor Act, specifically Section 2 thereof reading "The purposes of the Act are: . . . (5) to provide for the prompt and orderly settlement of all disput9s growing cut o_° grievances or out of the inter^retaticn or application of ugredsunts covering rates of pay, rules, or working conditions."


        The FFmrloyos plainly identifi d the subicut of the dispute, stating in

        their submission:

        "Rule 2 of the Agreement prcvidcs in paragraph (b) thereof,

        that Lke duties o` the incumbents ct' sistant Chief Dispatcher

        positions will include, ampnZ ethers (1) being rrsponxihla_ for

        the rnpvemant _o_f -trai`n -, on a divi lion or other assigned territory,

        and (i) to oervisz.!he handling _ci trains and the distribution

        of power and easipment incident thereto- ~EmpAasis Won)


              It is on the above emph_sQed Agreement provisions that the instant dispute -.,,based, in its entirety."


              Award No. 19794 quotas the rule in question, stating: "Rule 2 (b), with emphasis supplied, reads:


                  '(b) Chief Dispatcher.^..' and Assistant Chief Dispatchers' Positions. These classes shall include positions in which the duties of incumbents are to be responsible for the Kovement of trains on a division or other assigned territory, involving the supervision of t dispatchers and other similar employes; to c»rarvi3e the handling of trains and the di:tributicn of power and equipment incident thereto; and to perform related work.,"


        The emphasis supplied section of the ruin cited in the award broadens the clearly identified subject or scope of the dispute by including tire .·:ords "and to ;crforn related,work".


        Mth this inclusion it 4as reasonable to assume the Award,for soxe reason, doomed it nococsary to rule on or intorpret the phrase "and to perform related work" and/or ejunted the actual issuance of instructions to be related work. Thor faro, in r3-argument the specific question was asked if the record clearly showeo the supervision rather than the issuance of instructions was the issue in question The affirmative response Unt the basic issue w-as recognized to be the handling of trains is ccnfirmd two places in tha Award where the words "to local trains concerning the picking u


~i
        DISSENT TiD AWARD NO. 197' DOCKET TD-196 PAGE 2


The V^ic issue, and in _ ....^.t the only Kcua, in dispute was the duty of the Tositicr:s contnin_n in the ieparaie clauco of th-q, rule reading to supervice t::3 nnndJ.ing u. ._.., the distr__.i.,n of povv: and equipment incident.. thereto; . . . . tails '_::e <iutty uWainpQ Z.. ;he c:nus, "and to perform related rorh." Could ba con:'...'.; to :comi:-o co11atu-.il inforoscion or consideration to dctercine ,.;:o intcny, 0, duty nantalned i_, We clause "to superv'i°-: the handling of bra inn W the V .. .:uticn . . , ,.. ne .. :d K-_-._ inc'_d-nt tt;ornto" in ,.r; °tul clear lunr;u ^,e A.._.._ _bes ,.._ work in Ineation.

 Awa:m ..f. 197YA vorlookc ..;:s lan_Lar cuntainud in the clause doscribin;
 t.iH duty b::l - p::I-C1:(.: :.: CC1_..oL3u, lr:=u_..-;iur^., 2La21u:l:

 r.l-c,r ^,n·:nt . =::fios its `~Lurc:cnlo.·.r~.:-coi ti~i-c ~:au1e~ 4 (b)
 .:!_w:rly ;::i :.. ,=:biU,:c.,Q;; -r.·s " _W:.:va ui:,::;, to the in
 vu=vcc! -.cr·: -. _^plcy,: cl?cs;.if;. 1 "c Ct-.icl !`i::c::tchors or
 a_,~i^,rr.t r.,_ ~ Dl ,._.:ars.

 :::e :. -

 ,1.._.,...,r-,. ..

 _. f::'> ..

 f' _,.::7r5 P'.. .
 1,'., a '_r_.._..

 c":'.;. 'f&:: ,

 cb:;ance of

 1-c ,:w::ir

 ...:.·Ws; :ice .~ ::'; .,_ find that the clause emchi:.i:au' in Rids 2 (b),
 LuL _ or.pr ..-w_;; vest:: an c::alus'_ve right in Chief Dispatchurs
 nn.: Aasister:-., .;'::ioi Di::Fa-_;,hers tc issue instructions to local
 tr-ins cancu::.~iag t'r.a picking u;. or setting off of cars."

 .-__ of ,.,__ D_.·isicn .,_.. c:.,i._._e'_?i ::old t;-_a

 - (il) - ._, consist M; UK& o:'~n_._,. that Dic
 -:1 ..-_:.'uSiVU rie,h': __ 1.::~t13 i_.::u.:'t'Ct10::S t0

 .f _'it. Premie_~. cu;ir]c_ii r,2-.d/or its

 , find ro._.nefect; i. t.:c Prey^ciant

 The requirement thzt an exclusive right to perform the work be proven by history, custom, or prcc-.:ice or otherwise i.;: unwarranted and improper for the nleu'>e Mining the du-,, sets cut the work in question. The tima-worn, often mis-used vxoluaivity :.~..,,ry. _.e. burden of prco:',has no place in the adjudication of .. ;iir:pu Act uro·ridus for satin-,.-nt: of liouur,_, cov:.rin:; both the interpretation or ;:(llic;.:ic.^. of .4;;rc;cr..·_-` -0·. t;;u ^I:.1.: is Hourly vc7o:od, .:hat is required _.> ar. interpretation _ . ..._ Yrittan words; -,._ ::rather t:..' . ,.ritton words have application e.nd/cr c::;;:v:: T. -::o ".hirei Division has :o ruled on ::any occasions, for cxemplo:

    Award ('(u. 115_26, _:..raci::

        "The f.t;u.~,u:eot between t,k:e (;e:rtien is sy star-wide. It is not confi.:·-i soul: to s^.crc:e:ento or to West Oakland or to ::ny ono c.: tire barrier's Ci.vision:>. It includes thorn all. ,:hi.lc: it i.^. Tyne v.i.at the Earlo;;e>:: e'o not hsvn access to all of r·oL.ri::r'.. . .o^rio, and that it ia nnmatimes difficult to Won r.ll t:.,. L _a .. _ , aei: _ in l:,u , '.rr, i t _,. ::wor thelvss,

                                            DISSENT TO AWARD N0. 19794

                                            DOCKET TD-19857

                                            PAGE 3


              the obligation of the Employes to make certain that the work belowain,g !;o Signalr"r is specifically set out in the Agreement. If it is :rot so set out, then thcs work belon_;s to thcq caly if. 1:^ --actice, custom and uza.ge of on thy property, work has Loan done system-wide exclusively ';, _,::11:_°:.. ,._ . o .os S;Q7 _'.;Co

              . 54U4 (rnrkar), 7806 (Cosy) vM 1'08 Qobertson).''


          Kard i:o. 13330, Cor,

              " . . . ,.·:d, reaso:u.blo men c_ry differ as to c:ho.h=. 'mainti.._nou' of r =^al asuiym=.ut i.s an oxclu:_Vo qrcnt r;f ,tie work of sneu rern,val from , ._n

                                              .


              e.qu'. nont. ML-qunntly, !no principle, that v:hpnwe . ind an'livu_ _ . = a sco-o rule tha t,urd i.^, won

              pctiticior := rrnve that historically ~nd customorily

              the York _ nvolvcd his be~n exclusively . ; rf ormoca by

              ampl-, vs cove. , . y an aSrc°, eat, is applicable.


          Rwurd No. 1;471, O'Brian:

              "7n order .o sustain their contention, the OrEanizat` .. ._:: t:za qardnn of rrovir7 tot th,o Ag gram,:: it exclusive right Lo the work complained of by saying that such work is reserved to the OrC the absence of such a Rulo, it must prove, by probative evidence, that; the work is of a. kind that has been hiLtorically, custc=.arily, and cyalusivoly performed by employes covered by the Agreement."


        then you have a rule defining the work or duty, proof of exclusive right is not aprcios. This must be true, otherwise the exclusive right thoory could destroy any rule in an .Zraement 1,. a single violation or deviation regardless of the circumstances. Toe exclusive right theory has application only when the work or duty is not defined or the definition is ambiguous. The clause "to supervise the haralinrl of tra thereto" is not ambiguous and collateral evidence is not required to determine its intent or moaning.


        Award No. 19794 searches for preccdential support of the Opinion rendered, stating:

              "The Awards of this Division have consistently hold that classification provisions identical to or in substance the same as Rule 2 (b) have consistently denied claims that Dispatchers have an exclusive right to issue trains concerning the picking up or setting out of cars. This body of case law has pracedential value in the abscnco of proof that its premise is empirical and/or its reasoning sophistry."


i
        DISSENT TO A'i'ARD N0. 197'' DOCKET TD-196 PAGE 4


The finding in kaar'i No. 19i:Di and other r...ards of this Division adjudicating disput^z i.nvolvin,- ,ho; duty ;.n ·;uporv.ine oho handii:,· of trains and the distributi.o:7 of poyer e;ml e:;clusivo right to :.uch work, clearly ar:d Mainly rsservod in ;,:7o H:;reement rule, ::: cmpirici:-:r; pure and :.i;~ple for t _o rule ler.;4sge is nut interpreted or consifiured.

    In closing, z._. ..~:~.rd .

        "In t::e resol_.·._on of 'hl;- _.-o'Uta We fin-1 no ,.id in the defi··, ._.,.. of ';ui~_ ant' ;_tl ti:c publication titlcd 'Officici .._;.1'..-cy :a..i;_-`..a ~o~_...~ar. "


i.^. ouch uf the ._,:':::: ~ _ :rugra;.:7 (c~ of the _,.t-7c.c , of clsi·I i^ !ho
 ..;.ard, ..._ .··u mber,;::· ._.,..curs . _ certc:n .,_,_ or ccr.: are ,sho !;ill,:: ~~. _ .ent i . .:~ar vc, i _:n5 '.he:;., .arn listc.l. 'she rc:·,i ::~cr· nho'u11

 i7'_v'c. :.~ : _ ..n~ (ic, .. .,..:)1-_ .
 i : "c;.l.- ~' ,.'i i6" .... i.::_~ z '.;Jrd -..

 tiiu ('.'-T G- cars m..tlfld L',: tiiit;!7 U(:CliranCe ill t!:.. _',le.

 ... ti:,: ....,.ing in . . -_d i:;:. ~..':i2 don.;!*, the cloics
 !.v·~al _..,ins __nccr_W:; _ha pir.:.'_ ,; up and .:...~;a;S uff of

 c. t::,.,.VI,, ux_m;

 o~." sora~ ;,rt·. ?,wr.:rd ._,. l:%7

 .

 either ~;cept thot _c:;ala' r.:ovi::g ca a local train or

 .:7zvy, .7_ 6 c;-L-001C e,... to 'he d.:,,!·ee that you cost

 c..:. 7:ot train:; cr that e;uipr;ent is not e,!ui!-:u;t e.hen bo t!x.

 Tha (:ispute rrc: net over "classification provisions" but a clear-cut 'duty defined in the Hgr: a;.;~r,~, i.o. 'to suporvis,a the han.ilin5 of tr;:ins and the distributicn of p chins t.~· nvadinr,; .:.o i:;:wo and failing W consider e.na/or interpret the rule. T:lerefore, Award No. i97;)4 is in error and I rust dissent.

 J. P. PiP~iCS(
 LABOR ;:E6`BER