(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 J. 0. Swerine, A. F. Burke, Jr., S. J. Nelson and S. R. Johnson each eight (8) hours at the pro rata rate of their respective assigned positions on December 10, 1970 when Carrier had suspended the 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
OPINION OF BOARD: The facts and circumstances out of which these claims arose
 are practically the same as in Award 20115. The parties are the same with the American Train Dispatchers Association representing Claimants J. 0. Swerine, A. F. Burke, Jr., S. R. Johnson, S. J. Nelson in a dispute with the Soo Line Railroad Company. Each of the Claimants was scheduled to work on December 10, 1970, as train dispatchers.

 This Board is of the opinion that Rule 13 of the Agreement was violated for reasons set forth in Award 20115, and that these claims should 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;

 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 RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: ~ ~ · ~/
 Executive Secretary

 Dated at Chicago, Illinois, this 25th day of January 1974.
        Carrier I'Mbers' Dissent to Awards 2011= 20116. 20117 20118


                      (Referee :lays )


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."


?Iowhere in the record in these four cases is there any competent evidence presented by the ernployes that any dispatcher positions were abolished. In fact tae employes admitted, :n the record, that no jobs were abolished when it was stated:

        "In effect the Carrier had abolished the train disratcher's positions even though no notice of such abolishment ,pas issued."


rule 13 does not deal with "effect", it deals with positive substance i.e. "a notice shc11 be given". In the instant cases it =s crystal clear that no notices were given. Let the referee has seen fit to support the employe's position ;=I:at the C:.rrier did not comply with rule 13. This Board is not empowered to write rules for the parties but this ii exactly what this referee has done in arriving at such an erroneous conclusion.

    Even though no trains were moving because of a strike, the dispatcher's

positions in case were still in existence - not having been abolished. All
 claimants had to do was rerort for work on them to "draw their ppy". The
 positicns were (heir's and it :pas their responsibility to report for them.
 It is obvious the reason they did not report for them was because of the
 strike and their refusal to cross a picket line. It t:as claimants' right
 to choose not to cross a picket line, but when they so opted they were not
 entitled to compensation and the awards of this Board have so held. It was
 irrelevant whether there was any work to be rerformed - the claimants'
 positions were still -n existence not having been abolished in any way, shape,
 form or manner. The referee should have followed the sound reasoning and
 principles set forth by this E:ard in Third Division A-,.rards 5858 (Guthrie),
 16499 (Engelstein), 1'.945 (Ives), 16500 (EnGelstein), 16746 (Friedman),
 19715 (De vine), his o·.m Award 19915, 11102 (i;cGrath) and Second Division
 Awards 4494 (Anrod and 6435 (13ergman) which awards were discussed with him.
 Since the record in these cases clearly indicates that there was no rule
 violation by Carrier and further, claimants in cases above chose not to cross the
 picket lines they did so at their own peril and should not have been compen
 sated for such selection of action.

    The awards are erroneous and are of no precedential value.


    For the foregoing reasons we dissent.

_ 2 _

    Yl. B. JO:


              ~J


    P. C. CARTM


        ~'~171~ ,cl-

    ~~ec~. l1. F. I?. i~aAID'IOOD


    G. L. :.AYLOR ,


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    c.

      /211


      :.i. roa~r

            Labor Member's Answer to Carrier Members'

            Dissent to Awards 20115, 20116, 2011 , 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 xarty is prone to claim tinocence of arty wrongdoing. Directors of penal institutions often comment that their prison is tall of innocent men, i.e. the nnjority of the imcates 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. itotwith",Landing such denial of compensaticn, 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 13 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, vrithout proper notice, and t 8526 cited 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 manne:. *+*"


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
 Labor ?'.ember's Answer to Carrier Members' Dissent to Awards 20115 20116,
 20117, 202-1Cont'd

 dispatchers i.ynediately available when trains were ready to start running again. Thus, no attcipt was made to comply with the Agreement. This appearance is confirmed to be co wherein another die=atcher, not one of the Claimants, vas required to be immediately available when the trains did start running again.

 In these Dissents the Carrier Members try to revive the defense Carrier raised to defend its action of withholding payments for positions which Carrier contends pnd/er admits had not been abolished. This defense, i.e. any loss of canpens"_cn vas the result of the Claimants' failure to cross the picket line, `ms consi~:ared and rejected in these Awards. Award 20115 ruling on this issue, states:

          "*** The right of Claimants to honor a pic::et line

        is not in issue. This Bo::.rd has rec^,ani-.ed this right

        m. anJ- times. Kcwever, in the i_st:xit case we do not

        think Clai^:azts were requiree o r--Ll;e a decision

        re,7 ar di, g cronsing tile pi^_';et lae. They k:^_e-a, and

        Carrier of fici_ il s hncxr, t'rrt `.here vas no need for

        then to -o to their ear.rents bccr:nse no 'Vrains

        were -ovig, or about to be moved, as long as the

        strike ·ras 9n effect. `~"


Tie Carrier "e_^hern' in these Dissents stated "the referee should have follox,ad the sound reasoning and principles set forth by thin Board" and listed the z.-);ards which the Carrier M:rnbers proclaimed to be bared on sound rea.^.oning including thi4 Referee's A:rard 19915. Award 20115, commenting nn Ar:~rd 19915, unich Carrier Members cited and endorsed as sound, states:

        "**m Ill. Award 19915 this Board held: 'There was work available for Clacants but they preferred to observe -le ,icl~et line.' Tae situation is difi'crent in the LlLt.1t case beccuse there :mss no work 'available.' Evience of this is that within an '"-,Lr or tvn a·'ter tl~e strike rratcri._.lized c;iscItchers ^.z the Third Trick ;..,ere advised tncy could leave their positions. Had the trains been running Claimants would have been required to make a decision re,srding crossing the picket line, but it vas clearly pointed out to them that ?:o trains were moving."


These Cnrrier I-.'nnbers' Dissents, which are merely rcargiments and/or

an expression of ·dissatinfaction with the firal decision, do not detract fr. .


                        -2-

Labor Member's Answer to Carrier Members' Dissent to-Awards 20115 20716,
 20717, 2011d (Cont'd

 the value of these Awards. Awards 20715, 20116, 20717 and 20118 are not erroneous nor are the',; stripped of precedential value by these Carrier Members' Dissents.

                                  J. P. Erickson

                                  Labor Member