(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 4 and 13 thereof in particular, when it refused to compensate Train Dispatchers R. L. Hamilton, J. E. Dettman, and G. L. Terczynski, hereinafter referred to as "the Claimants" at the applicable rate on December 10, 1970 when Carrier suspended operation and in effect abolished train dispatchers' positions without seventytwo (72) hours advance
(b) Carrier shall now be required to compensate Claimants R. L. Hamilton and J. E. Dettman eight (8) hours pro rata of trick dispatchers' rate and Claimant G. L. Terczynski eight (8) hours punitive rate of trick dispatchers' rate for December 10, 1970.

 OPINION OF BOARD: The facts and circumstances out of which this claim arose
 are practically the same as in Award 20115. The parties are the same with the American Train Dispatchers Association representing Claimants in a dispute with the Soo Line Railroad Company. In this case December 10, 1970 was a regular assigned work day for Claimants R. L. Hamilton and J. E. Dettman. However, December 10, 1970 was a regularly assigned rest day for Claimant G. L. Terczynski, who had been instructed to work on his rest day.

 We believe that Rule 4 (Rest Day Rule) of the Agreement has been violated as to Claimant been violated as to all three Claimants for reasons set forth in the Board's Opinion in Award 20115, and that the claims should therefore be sustained.



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;
                    Docket Number TD-19949


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


        Claims sustained.


                          NATIONAL RAILROND ADJUSTMENT HOARD

                          By Order of Third Division


ATTEST: _ ~IP
 Executive Secretary

 Dated at Chicago, Illinois, this 25th day of January 1974.
        Carrier ?'embers' Dissent to Awards 2')1' , 2 0116,! 20117, 20118


                      (Referee 1?ays )


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

        "Seventy-two (72) hours advance notice shall be given train dispatchers affected of abolishment of a regular position.''


_icwhere in the record in these four cases is there any c-mpetent evidence presented by the err.nl-yes that any dispatcher rositions were abolished. In fact the employer aamitted, :a the record, that no jobs were neolished when it was stated:

        "In effect the Carrier had abolished t::e train discatcher's positions even t::cu~;. no notice of such abolishment was issued."


                                          i

..sae 13 door __- d,,ai .. th effect", it deals with rositve substance i.e. . notice ...·.- ,.,. f~1ven". In t.:e inztant cases it is cr;jstal clear gnat no ::otices -.:ere .-iven. Yet the .c=erce ::as seen fit to u,,port the er:i.lcye'c _ 'sit::n '-hat t:ie C~rr·er slid not ccmrl;; ':,ith rule V ~. Iris Poard 15 .,^r c·mrr~pr~.Ci to write ru),"s for tae 1.artief; but _his 's 0,~Rctly w;7at this __:crce has done in arriving at such an erroneous conclusion.

    Even though no trains were movin,l- because of a strike, the dispatcher's

positions in case were still in ccxi,tence - not having been abolished. A11.1
 Claa"n_nt.- had to dJ ' _._, re~or t f'or -orhva '-her-, to 'draw their nay'. The
 po-iiU:.".ns were t~·_ir'S and it was their respcnsibllity to report for tlllem.
 It :s o'ovious the reason tae;; did not report -'Or _?:en was because of the
 stri:;e and their refusal to cross a picket line. It was claimants' riCht
 to c :nose not to Cross _ r_c et line, but c:hen they so opted they ,mere not.
 cnti'led to ccr:rr<·nsaticn and the awards of thin Eoard have so held. It was
 irrelcv.-nt whetncr ;:,ere was any work to be pcrformed - the claimants'
 positions were sl,i11 in e::istence not ha-:in., been abolished in any way, shape,
 form or manner. The referee should have follo:;ed the sound reasoning and
 principles cot forth bl, th:s Eoard in Third rivis_oa A.Wnrds ~9"8 (<:uthrie),
 16499 (7ngelstein), 1!.945 (Ives), 15;00 (_'nCelotc-in), 16746 (Friedman),
 19715 ((Devine), his c*:rn kvard 19915. 11102 (::cGrath) and Second Division
 P:wards 4·,94 (1,er77 -,nd 0;-, (nerCman) ·i,hich a·.r'ards :mere disc,ased with him.
 Sin.^:: ,I... record in ;::ere eases clearly -ndicates t!,-at there :r3s no rule
 violatic,n by Carrier and further, claii.-.ants in cases above ch.:~:=a not to cross the
 rici:et lines they did so at their own peril and should not have been compen
 sated for such selection of action.

    ine awards are erroneous and are of no precedential value.


    For the fcrcjoins reasons we dissent.

N. B. JG: r ~~
            /L


P. C. CILRTER
'~~ ~~ i y~t~ L C L~
 k?. F. ::. BRA=r7CC1)
G. L. iir.~LCR v
c. ... 10UIL! c
                    Labor Member's Answer to r Members'

                    Dissent to Awards 20115 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 reargument 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 admissions 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 law. However, whether a violation of contract or the law, 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. Notwithstanding cuch denial of compensation, the Carrier in the record and the Carrier Members 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 1,3 was not given, hence the positions were not abolished. Carrier Members' Dissents studiously avoid commenting on the findings in Awards 20116 and 20117 holding Carrier also violated Rule 4. (Rest Day Rule).


        Award 20115, after a complete study of the facts and evidence, concluded stating "Indirectly, Claimants' positions were abolished for that day, without proper notice, and th as authority states:


                "*-*-* 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. Many days are spent before a strike call in complying with regulations in the Railway Labor Act. Carrier could have given the due notice provided in Rule 13 if Carrier wished to avoid paying these dispatchers. It appears that, because of the anticipated intervention by the Congress to prohibit this particular striKe, Carrier wanted to have


i
        Labor :".ember's Anshrer to Carrier Members' Dissent to Awards 20115, 20116,

        20717, 2J11b Cont'd


        dispatchers immediately available when trains were ready to start running again. Thus. no attcmct vas made to comply with the Agreement. This appearance is confirmed to be co wherein another dispatcher, not one of the Claimant3, was required to be immediately available when the trains did start runn.uig again.


        In these Disaents the Carrier Members try to revive the defense Carrier raised to defend its :coon of withholding payments for positions ;which Carrier centendc rrd/cr admits had not been abolished. This defense, i.e. a:1y loss of ccapensation·.r_s the result of the Clai-aants' failure to cross the pi&et IL-.e, ;.-ao cc._,i·'.=red and rejected in these kwarrds. Award 20115 ruling on this issue, states:


                "-)Hf-x =e rirrht o` Claimants to honor a picket line is not ~n issue. tnis Board has recognized this right nary tmc--. '-However, in the =_stcnt case we do not think Cl--l nts were required to .-s.ke a dc~ision rcgardi_r- crossin? the picket line. They know, and Ca=·rier ciicials t:nPrr, tbrt th^_re was no need for then to ;o to their .Zz;_;n:;:nta because no trains were ^:o·.^-rt·, or about to be aved, as long as the strike :,r·:, in effect.


        The Carrier I:e^bernn' in these Dissents stated "the referee should have followed tie sound reasoning and urinciples s,--t forth by this Board" and listed the a:.sard_s w-h?-n the Carrier i:~_^bers procIai-:cd to be based on sound reasoniir includirio Chas Referee's Award 19915. P.;rard 20115, commenting on A·,mrd 10,915, which Crier Members cited end endorsed as sound, states:


                  "?n Airard 19,015 this Board held: 'There was

                work a1;.)-able for Clavuants but they preferred to

                obserNe -:`~e ^ickez 1= e.' cne situation ic, different

                in the i-:z_.^nt cure because tttcre was no 1~mrk 'avymil

                able.' ::vidance of this ...r chat w;thin a=. hour o=

                t·ro aft^_^ the rtri:e r-atcriN.ised d.iscatchere on the

                Third Trclz sere advised they could leave their

                positicnc. Flwa. the 6'rains been running Claiants

                would : ce been renuii·ed to ri·.: e a decision regarding

                crossing the pichet li =, but it was clearly pointed

                out to them that no trains were moving."


        Thane Carrier Mt-mbars' Disceats, which are merely rearFuments and/or an exprccsicn of diccatisf;action i:ith the final decision, do not detract fr_-,


1
 Labor Member's Answer to Carrier 11embers' Dissent to Awards 20115 201.6,
 20117, 20llb (Cont'd

 the value of these Awards. Awwds 20115, 20116, 20117 and 20118 are not erroneous nor e=re they stripped of precedential value by these Carrier Members' Dissents.

                                  J. P. Fricthson

                                  Labor Yc--ber


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