NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20049
Frederick R. Blackwell, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES -O DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7197)
that:
Carrier violated the Telegraphers' Agreement (TCU) and in particular, Paragraph C of the ;Tay 20
x.971, it required the Conductor of Extra 201 Forth. an employe who is not covered
by the Telegraphers' Agreement (TCU) to receive and copy Train Order No. 33, on
line, at Salter, Texas, a location and/or point when^ ro Telegrapher is employed,
ajid then faiieu and refused to compensate claimant
T.'. M.
Nittsche, as required by
_aragraph 2 of the May 20, 1970 Memorandum Agreement.
?, Carrier shall now be required to compensate Mr. W. M. Nittsche,
Telegrapher, three :ours at pro rata rate, as required by the May 20, 1970 Memo-ardum Agreement.
OPINION OF BOARD: On January 5, 1971, Extra 201 North and Extra 830 South had
orders to meet at Salter, Texas. However, while enroute to
Salter, Extra 830 South was observed to have sticking brakes and the train had
to be stopped to determine the cause. Because of the delay resulting from the
stop, and i.n order to avoid additional delay to Extra 201 North at Salter, Tratn
Order 333 was issued to the conductor of Extra 201 North to oermit his train to
move from Salter to Marrlia. Texas. The conductor received and copied the order
at Salter, which is a location at which no telegrapher is employed. The delay to
the Extra South was thirty minutes; without the train. order, the Extra North
would have been delayed an hour or more at Salter.
Because the conductor who received and copied Train Order #33 is not
covered by the Telegraphers' Agreement, the Organization (T-C Division, BRAC
Agreement) made claim for payment of a call under the Agreement of the Parties
dated May 20, 1970. The Carrier refused to make such payment and, for that reason, the Organization
In pertinent part, the initial claim, dated February 4, 1971, stated:
"There was no emergency involved, therefore, I hereby designate
Telegrapher
W. M.
Nittsche to recefe a call payment at the applicable rate for this violation as provided f
of Agreement between the Carrier and this Organization."
J
Award Number 20127 Page 2
Docket Number CL-20049
Carrier's Superintendent Kerlee denied the claim for payment of a call in a
March 18, 1971 letter which states:
"Investigation develops that it was necessary to issue this
order to move Extra 201 North from Salter to Marlin against
4143 as result of #143 being delayed approximately 30" at
Mile Post 804 due to brakes sticking."
In appealing to the General Manager from the Superintendent's denial, the General Chairman wrote
"It is noted that Mr. Kerlee has again taken the position that
sticking brakes are emergencies but I must remind him and you
that there are no emergency conditions that exist as far as the
Agreement is concerned when a delay is caused by sticking brakes.
This can be seen by applying the Rule as it is written and not as
one would like to interpret."
The claim was further denied and appealed to the Director of Labor Relations,
0. B. Sayers, who, in an April 22, 1971 letter, stated that:
"As you have been advised, Extra 830 South was delayed 30 minutes
because of brakes sticking at Mile Post 804. Such occurrences have
always been considered as emergency conditions on this property
and because of the emergency conditions the exception to the Memorandum Agreement dated May 20, 1970
On the basis of the foregoing, and the whole record, the parties have
joined issue on the questions of: (1) does the General Chairman's failure to
deny Mr. Sayers' statement of April 22 constitute an admission which defeats
the claim; and (2) does the delay of a train from sticking brakes come within
the applicable emergency definition even though not expressly mentioned therein.
In regard to the first question, the record shows that a strong, broad
challenge to Carrier's defense of emergency was made in the General Chairman's
letter of April 14, 1971. This challenge quite clearly covered all facets of
Mr. Sayers' statement of April 22, and no further challenge or denial was necessary. Accordingly, we
before us.
The second question calls for an examination of the emergency exception to the 1970 Agreement, b
when the exception applies. The emergency exception, found in Rule 2(c) of the
Agreement dated March 1, 1952, reads as follows:
Award Number 20127 Page 3
Docket Number CL-20049
"Emergency is defined as follows:
Casualty or accident, engine failure, wreck, obstructions on
track through collision, failure of block signals, washouts, tornadoes, slides or unusual delay due
that could not have been anticipated by dispatcher when train was
at previous telegraph office, which would result in serious delay
to traffic."
The Petitioner argues that the above rule does not include delay due
to sticking brakes and that the rule must be applied as written. Notwithstanding the rule's o
Carrier says the rule should be read as including such omission. In support
of this position, the Carrier, in its Submission, argues that:
"The parties have never applied Rule 2(c) as restrictive as the
Employes are now contending in the instant dispute. Emergency
has been applied in the 'general' not the 'limited' construction
the Employes are here contending is applicable."
In appraising the opposing positions, our starting point is that there
is no ambiguity in the text of the rule agreed to by the parties and, hence, it
follows that the Carrier has the burden of showing by probative evidence that
the rule covers a condition not mentioned therein. The evidence offered by Carrier on this point con
rule have allegedly been abandoned by the Employees. One claim involved a broken
rail; one involved a sun kink in a rail; and two involved sticking brakes. The
record shows, however, that Carrier made payment for two calls involving a broken
rail and, in addition, that the sun kink claim is pending before Public Law Board
No. 465. This leaves, as the only instances of abandonment, the sticking brakes
claims, which, according to the record, expired due to time limits. Obviously,
these claims have no significance to the herein issue, because the very claim before us involves sti
to show that Rule 2(c) should be deemed to cover unusual delay due to sticking
brakes. As we stated in Award 10501 (Hall), " . The Board is required to take
the Agreement as it is written. It cannot rewrite the Agreement by interpretations putting into it t
In conclusion we note that we have carefully studied the Awards cited
by the Carrier, but find them not apropos. For example, in Award 13731 (Nesigh),
the contested action did not involve a train order; it involved a message to a
PBX operator by a clerk who had observed an engine without headlights. In Awards
14009 (Dorsey), and 16482, 16483, and 16484 (Perelson), the conditions involved,
such as engine failure, break-in-two, and a wreck, were found by this Board to
be within the express provisions of the emergency definition.
In view of the foregoing, and on the whole record, we shall sustain
the claim.
Award Number 20127 Page 4
Docket
Lumber CL-20049
FINDIIUS:'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,
1931:;
That this Division of the Adjustment Board has Jurisdiction over the
dispute involved herein; and
The Agreement was violated.
A W A R D
Claim sustained,
PATIOXAL RAILROAD ADJUSTMNT BOARD
By Order of Third Division
ATTEST:
41
Dated at Chicago, Illinois, this 31st day of January 1974,