(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Missouri Pacific Railroad Company

1. Carrier violated the Telegraphers' Agreement (TCU) and in particular, Paragraph 2 of the May is not covered by the Telegraphers' Agreement (TCU), to handle Train Order No. 208, to be delivered to Extra No. 426 South, on line between Taylor and San Antonio, Texas, at a location and/or point where no Telegrapher is employed, and then failed and refused to compensate Claimant J. R. Cowan as required by Paragraph 2 of the May 20, 1970 Memorandum Agreement.

 2. Carrier shall now be required to compensate Mr. J. R. Cowan, Telegrapher, three hours at pro rata rate, as required by the May 20, 1970 Memorandum Agreement.

 OPINION OF BOARD: On December 9, 1970, a telegraph operator at Taylor, Texas,
 copied Train Order #208. The order, which was to be execu
 ted by the crew of Extra 426 South, was addressed to the Conductor and Engineer
 (C&E) of Extra 426 South "in care of" the Engineer of Extra 644 South. The
 telegrapher gave the order to the Engineer of 644 South who thereafter delivered
 the order to the C&E of Extra 426 South at McNeil, Texas. No employee covered
 by the applicable agreement (the T-C Division, BRAC Agreement) is employed at
 McNeil.

 Petitioner BRAC concedes that Carrier is permitted to do what it did in the instant facts, subject, however., to the Carrier's obligation to make payment for a call as provided in an Agreement dated May 20, 1970. The Carrier refused to pay the ca with its practice of handling "in care of" train orders under Operating Rule 217 and, further, that the 1970 Agreement is not applicable to the instant facts.

 Operating Rule 217, and the pertinent agreement provisions, read as follows:


Operating Rule 217
"Delivery Orders.--Unless otherwise provided, a train order to be delivered to a train at a point not a train order office, or at which the office is closed, mu to 'C&E' (train) at (or between) (station or stations) care of , showing title of employe in whose care the order is addressed and who is responsible for its delivery.

 When delivery is to be made by another train, the train order must be addressed in care of conductor or engineer of delivering train." (Emphasis supplied.)

 "Rule 2

 HANDLING TRAIN ORDERS, ETC.

 (a) Only in the event of accident or similar emergency will an employe other than covered by this agreement be permitted to receive train orders at telegraph or telephone offices where an operator is employed. If operator is available he will be paid for a call.

 (b) If instructed by train dispatcher, or other authority, to clear train or trains before going off duty, leaving clearance cards or orders in some specified place for those to whom addressed, employes shall be paid under th and overtime rule.

 (c) Train dispatchers will not be required nor permitted to transmit train orders or handle block by telephone or telegraph to train and engine service employes, except in emergency; nor will train and engine service employes be required or permitted to take train orders or to block, or report, trains by telephone or telegraph, except in emergency. Emergency is defined as follows:

. .o










Let us first say that Operating Rule 217 concerns a method of handling train orders which Carrier has devised to expedite the movement of its trains and equipment. However, this operating rule is not paramount to the Agreement, Award 12371 (Dolnick) and, consequently, if the use of Rule 217 results in a violation of the Agreement, the Carrier can be held to account for such violation.

 We now turn to the 1970 Agreement which requires Carrier to pay for a call in the instant dispute unless, as Carrier contends, the term "handle" in the Agreement does not encompass the "delivery" of train orders to the crew that is to execute them. (There was no employee covered by the Agreement employed at the point of delivery, so this part of the 1970 Agreement has been satisfied.) The Carrier makes its argument that "handle" should be construed so as to exclude "delivery" by trac ETC) and the negotiations preceeding the 1970 Agreement, and by the citation of Awards No. 13, Special Board of Adjustment No. 506, No. 88, Public Law Board No. 706, and Third Division Awards 16270 (Zack) and 16271 (Zack). In large measure, both this history and the cited Awards make a showing that Rule 2(d) does not prohibit the Carrier from doing what it did in this situation, i.e., having a non-Agreement employee deliver a train order at a location where no Agreement covered employee is employed. While this showing is obviously correct, because Rule 2(d) is specifically addressed to delivery at locations where such an employee is employed, we face, deals with subject matter different than Rule 2(d). Moreover, although the history, not surprisingly, shows that Rule 2 has been the subject of much
                    Docket Number CL-20036


contention between the parties, it does not provide any evidence that "handle" in the 1970 Agreement excludes "delivery" of train orders to the executing crew. Also, although the cited Awards show that claims have been denied where Carrier's actions were not violative of the Agreement, the Awards in no way show that "delivery" is excluded from the 1970 Agreement. Thus, we find neither the history nor the Awards to be persuasive on the issues presented here. On the other hand, Awards 12371 (Dolnick) and 18436 (Rosenbloom), called to our attention by Petitioner, deal with the precise question of whether the term "handle" includes "delivery" when the former term is used in a train order rule similar to the text of the 1970 Agreement. In Award 12371, after comprehensive treatment and an reasoned decision was made that "handle" includes "delivery". Subsequently, in reaching the same result in Award 18436, this Board stated the following;

        "The threshold issue herein is whether the physical delivery of train orders to the train crews who will execute them is encompassed by the term 'handle' as it appears in the Train Order Rule. This precise issue has been before this Board many times but, as Referee Dolnick observed in Award 12371, there is considerable conflict in the decisions of the Board on the subject. In that Award, Referee Dolnick m resolves the question. We adopt the findings of Award No. 12371 and hold that the physical delivery of train orders to the train crews who will execute them is an integral part of the work reserved to telegraphers under their Agr assigned to employes not covered by that Agreement."


See also Award No. 8, Public Law Board No. 713.

 From our study of the Awards cited by the parties, and from our study of the 1970 Agreement, including its relationship to Rule 2, we conclude that "handle" in the 1970 Agreement includes "delivery" of a train order to the train crew that is to execute the order. Accordingly, though the 1970 Agreement does not prohibit Carrier from effecting delivery as it did in this case, when the Carrier does effect delivery in such manner, the Agreement requires Carrier, upon request, to pay for a call to a telegrapher designated by the District Chairman. In arriving at this conclusion we have also studied the Carrier's overall argument which is that, apart from the delivery issue, the 1970 Agreement was intended by th in speaking about the negotiations preceeding the 1970 Agreement, the Carrier's Submission states th
          "...it was the Employes' Assessment that the cost of the rule could be controlled by the Carrier, because their proposal related solely to resticting the use of t

                            Award Number 20126 Page 5

                            Docket Number CL-20036


                "employes other than telegraphers at locations where no telegrapher was employed under other than emergency conditions as defined in the various rules."


        The above passage indicates that the sole object of the 1970 Agreement was to restrict train dis " ..train orders, or communications which serve the purpose of train orders..." This text obviously refers to all train orders, written, phoned, or radioed, and we are not authorized to reduce the text only to orders which are transmitted by phone or radio. which the parties themselves negotiated and executed, and this we are not authorized to do.


        In view of the foregoing, and on the whole record, we shall sustain the claim.


                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 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


                The Carrier violated the May 20, 1970 Agreement.


                            A W A R D


                Claim sustained.


                                  NATIONAL RAILROAD ADJUSTMENT BOARD

                                  By Order of Third Division


                ATTEST: ~~ . I ~'I~ ia(~.. Executive Secretary


                Dated at Chicago, Illinois, this 31st day of January 1974.


. i
    CARRIER MEMBERS' DISSENT TO AWARD 20126, DOCKET CL-20036

    Referee Frederick R. Blackwell


The majority guided us through a maize of rationale designed to support and/or justify a decision contrary to the intent of the Agreement and rejected previous decisions involving the train order rule on this prope question of "delivery." The majority also rejected more than fifty years of practice under Operating Rule 217 that heretofore had not been found to be in conflict with any rule of the Agreement. The Carrier cited Award No. 13 of Special Board No. 506 involving this Carrier and train order rule and, as the dispute related to operating Rule 217, t part:
 " . . . This rule has been in use for many years and we can find no specific provision o2 the Agreement in conflict with it." (Underscoring added.) Obviously Board No. 506 examined all pertinent rules of the Agreement and correctly found that none were in conflict with Operating Rule 217. In arriving at this decision, the majority also rejected all evidence and argument supporting Carrie on this property the issue of "delivery" had always been dealt with specifically. The parties to the Agreement specifically provided for "delivery" in paragraph (h), subsequently paragraph (d), of the Train Order Rule readin "(d) When orders and/or clearance cards are
 copied at one point and sent for delivery to
 a train at a poin·_, where telegraph or tele
 phone service is maintained, the employe at
 such point will be paid for a call."
 (Emphasis supplied.)
 Paragraph (d) supra, first appeared as paragraph (h) in the
 Agreement in 1940. Had the parties intended that the Train Order
 Rule include "delivery" they could have so stated in the rule
 and paragraph (d) quoted above would have been superfluous. The
 parties having .failed to do so, this Board is without authority tc
 now amend the rule under the guise of interpretation. All ele
 ments of the Carrier's argument clearly pointed out the fact that
 the parties had not heretofore considered "delivery" in the ab
 stract. What manner of logic :would lead one to the conclusion
 that the parties to the May 1970 Agrecment would now treat
 "delivery" in the abstract if, in fact, "deliver," or messenger
 service was to be included within the Agreement.
 The May 17, 1970 Agreement is not a modification or
 extension of paragraph (d) of the Train Order rule for applica
 tion at points where no telegrapher was employed, but rather
 a settlement of a dispute concerning the use of the radio for
 transmitting train orders. The majority clearly understood the
 Carrier's point as evidenced by the first sentence of the pen
 ultimate paragraph of the award making reference to a quotation
 from the Carrier's submission:
 "The above passage indicates that the sole object of the 19%0 F.greement was to restrict train dispatchers (except in emergencies) from transmitting train. orders by radio or telephone to non-Agreement employees at locations not having a telegraph o Why would the Carrier make such a statement? Let's refer to the introductory paragraph and paragraph No. 1. of the 1970 Agreement that addresses itself to the intent and up rpose of the Agreement; that part of the Agreement that was not quoted within the body of this award reading as follows:

        "In full and final settlement o!: r,ll issues and disputr:s covered by the urganisai:ion's notice of . . . , concerning the use of _rad_iofacilities,


          IT IS AGREED:

1. It is recognized that radio facilities con
 stitute anther media of communication
 similar to the telephone, and that this
 agreement applies regardless of the method
 of communication used."
 (Underzcoring added.)
 The 1970 Agreement certainly did not refer to or cover "delivery"
 or "messenger" service which the majority has now included by
 the interpretation process.
 There is no logical support for the decision of the
 majority in this case. Going to other properties for awards to
 justify the decijion a::d i,cjecting awards i::sucd on ti)-is prop
 erty serves no good purpose, but serves to perpetuate disputes
 already settled by due process. Accordingly, we dissent and
 recommend no precedent value be attached to this award.

                          - 3 -

W. B. Jones

 P. C. Carter

 ~7inr/,%
              1.


G. L. Naylor,

 H. F. M. Braid:,;ood

 G. M. Y'oohn ~, .

        J

        LABOR MEMBER'S ANSkrER TO CARRIER MEMBERS' DISSENT TO AWARD 20126

              (Referee Blackwell)


                The Carrier Members' Dissent warrants an answer - not upon what it says but, rather, upon what it ignores.

                The Dissent refers to but one Award - Award 13 of Special Board No. 506, issued about six and a half years prior to the !!ay 20, 1970 Memorandum Agreement being negotiated between the parties, which is the Agreement involved in this dispute.

                It is understandable that the Dissent ignores voluminous Awards of this Board which uphold the principle that when a Carrier elects to use a rule of its Uniform Code of Operating Rules - Rule 217 in this dispute - which is not consistent with rules of the extant Agreement and, if the use of such an operating rule results in a violation of th is held accountable for the violation.

                The logic of such Awards including Award 20126, is axiomatic, i.e., the Carrier can change its o whim without consulting or negotiating with the Employes' Representative. Holv:ever, in changing its do so in such a way as to not circumvent the negotiated collective bargaining agreement.

                The Dissent registered to Award 20126 presents contrary and erroneous views, ignoring the many Awards previously rendered by the Board, for example: 86, 1096, 1167, 1168, 1170, 1304, 1456, 1489, 1878, 2071, 2087, 2926, 2927, 2929, 2930, 5087, 5122,


I
 5124, 5871, 6678, 7770, 8661, 10063, 11464, 13343, 14043,. and 14307, ..!hich firmly establish that a Carrier's operating rules are superceded by the rules of the agreement mutually entered into by the parties.
 Award 20126 is correct and is in complete conformity with the above-cited precedent Awards of the Third Division. The Dissent does not detract from the sound decision reached in this Award.

                          °letcher

                          Labor ??ember

                          3-18-74


        LABOR 1'E?"BER'S ANSWER TO CARRIEF

- 2 - MEMBERS' DISSENT TO AWARD 20126