(American Train Dispatchers Association PARTIES TO DISPUTE:

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

 (a) The Soo Line Railroad Company, hereinafter referred to as "the Carrier" violated the Agreement in effect between the parties, Rule 13 thereof in particular, when it refused to compensate Train Dispatchers F. F. Bablitch, F. W. Pfeiffer, and A. E. Kunst, hereinafter referred to as "the Claimants", each eight (8) hours at the pro rata rate of their respective assigned positions on December 10, 1970 when Carrier had suspended their operation and, in effect, abolishing train dispatchers' positions without seventy-two (72) hours advance notice.

 (b) Carrier shall now be required to compensate each individual Claimant eight (8) hours at the pro rata rate of the respective regular assignment held on December 10, 1970.

 OPINION O' BOARD: The claim of the American Train Dispatchers Association is
 that the Soo Line Railroad Company violated Rule 13 of the Agreement in effect between the parties when it refused to compensate Train Dispatchers F. F. Bablit the pro rata rate of their respective assigned positions on December 10, 1970, when Carrier had suspended their operation and abolished these men's positions without seventy-two (72) hours advance notice. Carrier denies that their positions were abolished and contends that Claim they reported for work at their posts of duty at the commencement of their assigned hours but that when Claimants approached Carrier's property in advance of their starting time, because of the presence of pickets, they chose not to enter the dispatching office; that there was no request made for escort through the picket line, and that Claimants voluntarily refused to cross the picket line.



The facts are that a number of Unions, but not the American Train Dispatchers Association, dissa Board No. 178, had threatened a nationwide strike against the carriers effective
                    Docket Number TD-19948


12:01 a.m., Thursday, December 10, 1970. Picket lines were established at that time. On December 9th, in anticipation of the strike call, Carrier issued a notice to all its train and engine service employees that if the strike developed, all their job assignments would be cancelled commencing at the time of the strike. No other classes of employees were so notified including Claimants. At the same perio dispute. The President signed the bill as Public Law 91-541 at about 2:00 a. m., December 10, 1970, approximatelv two hours after the strike had mateW3alized. About one hour later the U. S. District Court for the District of Columbia issued a Temporary Restraining Order against the striking unions. However, the unions did not dissolve their picket lines until after the District Court, at about 6:00 p.m., December 10th, issued an Order Adjudging Contempt of all the striking unions.

 Claimants in this case were scheduled to commence work at 8:00 a.m., December 10, and work until 4:00 p. m. that day. The right of Claimants to honor a picket line is not in issue. This Board has recognized this right many times. However, in the instant case we do not think Claimants were required to make a decision regarding crossing the picket line. They knew, and Carrier officials knew, that there was no need for them to go to their assignments because no trains were moving, or about to be moved, as long as the strike was in effect. In Award 19915 this Board held: "There was work available for Claimants but they preferred to observe the picket line." The situation is different in the instant case because there was no wor two after the strike materialized dispatchers on the Third Trick were advised they could leave their positions. Had the trains been running Claimants would have been required to make a decision regarding crossing the picket line, but it was clearly pointed out to them that no trains were moving.

 Carrier denies the charge that Claimants' jobs were abolished and allege that Claimants' case is "based on the complaint that Carrier did not abolish these positions." In support of this argument in Position of Carrier there is quoted part of a sentence taken from a letter by Office Chairman Erickson to the Division Superintendent.It reads:"....notice of abolishment of their positions was not given." The entire sentence reads: "In effect the Carrier had abolished the train dispatchers' positions even though no notice of such abolishment was issued.

 It is true that the Chief Dispatcher's statement to Claimants that "Carrier's operation had been sus (Award 16499). On the other hand his statement made it quite clear that there were no trains to be dispatched, no work to be done. Indirectly, Claimants' positions were abolished for that day, without proper notice, and their claims
 should be sustained.(Awards 8526 and 9212).
                  Award Number 20115 Page .3

                Docket Number TD-19948


        FINDIMS:'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 &mloyes involved in this dispute are respectively Carrier anti c.nployes 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 $ D


        Claims sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: ' /A "
 Executive Secretary

 Dated at Chicago, Illinois, this 25th day of January 1974.
        Carrier 1'ecbcr.s' Dissent to !;wards 201.1 ~, ^0116, ' l.17 20118


                      (Referee Hays)


The employes in these cases relied upon Rule 13 of the Train Dispatcher's ASreement which reads as follows:

        "Seventy-t-.ro (72) hours advance notice shall be given train disratchers affected of abolishment of a regular position."


!nowhere in the record in these four cases is there ant' ccmretent evidence presented by t'.e employed that any d.`siztcher positions trere abolished. In fact the employer admitted, in the record, that no jobs were abolished when it was stated:

        "In effect the Carrier had abolished the t1sin disratcher's positions even ihou.,h no notice of such abolish-:ent was issued."


Rule 13 doe:; not deal with "effect", it deals with rositive substance ..e. ~ notice :;!:ail ;,e given . ,n the instant cases it :, crystal clear that no -otices were -teen. Yet the referee has seen fit to support the employe ., rosi·.ien *!-,at _i:e Carrier did not comply pith rule 1?. -his T·oqrd is not emnower-d to write ;ides for t::e partirs but this is exactly what this referee has done in afrivin; at such an erroneous conclusion.

    Even `'houl-h no trains were nov'n.G because of a strike, the disratcher's

·ositions in cnse were still in existence - not having been abolished. _A11
 claimants had to do ·:as rei:c;rt _^__ .,orkon them to "drain their pay". ;ns
 r.ositicns .sere their's and it ,:as ulreir responsibility to retort for them.
 _. is obvious the rcason t::ey did not rerort for then; was because of the
 strike and their refusal to cross a T;':c::et line. It was cl,icants' right
 to choose not to cross a picket line, but when they so rpted they were not
 entitled to compensation c.nd the awards of this Board have so held. It ·.aas
 irrelevant whether there was any work to be performed - the claimants'
 positions were still _n e7·,istence not having been abolished :.n anyway, shape,
 form or manner. The referee should have followed the sound Yeasoning and
 principles set forth L~;,· t?iis Poard in T::i-d Division A.~rards 5856 (Glithrie),
 16499 (Engelstein), 1'19945 (I':es), 16500 (::ngelstoin), 167146 (Friedman),
 19715 (Devine), his c:n Lyard 19915, 11102 (i:cGrath) and Secund Division
 h::ards 4494 (A,nrod) ~;iad 6435 (Berlman) which awards were discussed with him.
 Since the record is these ccs~a clearly indicates that there -:·as nn rule
 violation by Carrier and further, claimants in cases abore chose not to cro:~s the
 picket lines they did so a;; their own peril and should not have been cor:pen
 sated for such :~electicn of action.

    The awards are erroneous and are of no precedential value.


    For the foregoing reasons we dissent.

_ 2 _

              s~rt:

    41. B. JO:;rS


    P. C. CARTM


              7

    C )\ '_ yl L\~ ~ C' L~ ii. F. t:. LZUL'.ICJL


    G. L. i.AYLOR ~/


    G. ~.I. 7OU1u1- c

            Labor Member's Ans o Carrier Members'

            Dissent to Award, 20116, 20117, 20118


                      (Referee Hays)


Under the guise of a Dissent the Carrier Members attempt to strip these well-reasoned Awards of precedential value. These Dissents are nothing more than a reargunent of the cases involved, and it is these Dissents rather than the Awards which are erroneous and lack precedential value or any other value.

 Violations of contracts are analogous to violations of the law in one respect, i.e. neither of these actions is conducive to admisciono of guilt and the accused party is prone to claim innocence of any wrongdoing. Directors of penal institutions often comment that their prison is full of innocent men, i.e. the majority of the inmates deny that they violated the lair. ricwever, whether a violation of contract or the l~:o, denials do not create or establish innocence and the facts or evidence must be considered to determine whether or not a violation did occur.

 In these disputes Carrier claimed the dispatcher positions had not been abolished and were in existence but withheld payment of the compensation for these assignments or positions. I?otwithstanding such denial of compensation, the Carrier in the record and the Carrier !:embers in these Dissents claim there was no violation of Rule 13 requiring advance notice of the abolishment of a regular position because the notice required under Rule 13 was not given, hence the positions were not abolished. Carrier Members' Dissents studiously avoid commenting on the findings in Awards 20116 and 20!17 holding Carrier also violated Rule 4. (Rest Day Rule).

 Award 20115, after a completc study of the facts and evidence, concluded stating "Indirectly, Claimants' positions were abolished for that day, without proper 'notice, and t as authority states:

          "*X* It is a familiar proposition of law that one may not accomplish by indirection what he is forbidden to do in a direct manner.


The reasoning is sound. b:any days are spent before a strike call in complying iirith regulations :n the Railway Labor Act. Carrier could have given the due notice provided in Rule 73 if Carrier wished uo avoid paying these dispatchers. It Lppears that, because of the anticipated intervention by the Congress to prohibit this particular strike, Carrier wanted to have
 Labor 1'.erber'r> Answer t^ Carrier Members' Dissent to Awards 20115 20116,
 20117, 2J11bi Cont'd

 dispatchers irmediatcly available when gains were ready to start running again. Thus, no attc-of was made to comply t,-ith the Pr;reement. This appearance is confirmed. to b crherein viot.".or di: fat.^her, not one of the Claimants, was required to be immediately availll:le when the trains did start running again.

 In 'these Dissents the Carrier Members try to revive the defense Carrier raised to d :fend i'ts action of withholding payments for positions which Carrier ccntr~nds _°uld%cc admits had not been abolished. This defense, i.e. any loss of =:2=.-a-,.ion '.a the result of the C2_iimants' fail;ue to cross the pichct 1.:..-.e :as r_cnsi''ered end rejected ir. these Awards. 1":ward 20?15 ruling on this iasue, states:

        "'K-*)' The right of Claimants to honor a ricnet line i:; not in ._"ale. :_lis Doard ha . ccogni_-od` this right navy tii:'ef. i:oidever, 1.:1 ';he ~,nstarit ease WC :-_O not tnin~: (;__...~=.^. t5 ware rCJ!1'l_rca )~o i.~l~ie a deC'J.zion regarding Cr0'Sltlg tnC ?'.:ir_vt.'v 1171.:. a1Cy ::Il:::., and Cc~_r-iF__ r·_.: _ C="l S l'rfrr, z:. -t th_re ~'Ms no need for

        i:1:Cm t0 ~ ::O .v.,.1Clr 4,W _'.r_:e111.;. DC^·..aU5.. :10 u·i'=.iC.3 i;er? novliln, or '_,bout 'l0 Da L~lved, as ion,, c.i tile rtri~'e 1?~S in ~:ffect,

                        ~F


                                  ry

:71e Ccrri.er I:e:~hers' in theso Dissents stated `4he referee should have foll,reed the- sound ;`:;aoni.·.g an:: orzi:=ip==s :,et forth by this Bcord and liated th..~.2.rds whi:a the Corric:r ~.':,:r~oers procL;;od t.^, be based on sound rcasonin ; including, ~.1i.s ..ei er ee `c Award i~ j15. :c..ard .:0115, ce=menting nn A;;a=·d 1951.>, ahich Carrier r'.°mbers cited and endorsed as sound, st3;tes:

            "*" In Avrard 19915 this Board held: '-hare was

        wonk avail=bie for ~wai:.a.nts but they 7referrcd to

        observe t .,u pic:=et i _ le. 'sae ;iteration i:; ciffcrcnt

        in 'Lae ~.: t-._.t c=e h_er_use then c . ms no uorl: 'a vail

        r,ble.' ..._._cnce of this is th::.t Within tin hour or

        ,. ,.,

        v'.CO Cfte_ . u ..iC Stri.°e i ^LCri%?~i7.2d diSi-NtC:i:?r; C1 the

        Third =rio_s w=e advised They could leave -c_:eir

        position-,. f?~i 'she trains oten running Clair-j-'nts

        wolUd i:-.~e been required to mite a decision .rcuexding

        Crossing tfc picker line, but it -,:as clearly pointed

        out to them that no trains were moving."


These Carrier :embers' Dissents, wv.ca are merely rearguments and/cr

an expression of dissatisfaction with the final decision, do not detract iro..:


                        -2-

Labor Member's Answer to ;;y-rier "embers' Dissent to Awards 20715, 20116v
 20117, LO11b (Cont'd)

 the value of these AS~'ards. Awards 20115, 20116, 20117 and 20118 are not erroneous nor are they stripped of precedential value by these Carrier Members' Dissents. r

                                  j. P. Erickson

                                  Labor D:ember,


1