(American Train Dispatchers Association PARTIES TO DISPUTE: (Fort Worth and Denver Railway Company

(a) The Fort Worth and Denver Railway Company (hereinafter referred to as "the Carrier"), violated (1) the October 3, 1968 Memorandom of Agreement between the of the Chicago, Rock Island and Pacific Railroad Company-Fort Worth and Denver Railway Company, Section 3 thereof in particular, and (2) the Schedule Agreement between the parties, Rules 1 and 3 thereof in particular, when it required and/or permitted a Trainmaster Carrier official, who is not covered by the Scope of said Agreement to perform work covered thereunder on August 30, 1971.

 (b) Because of said violation, Carrier shall now be required to compensate Claimant Train Dispatcher K. C. Vanderveer for one (1) basic 8-hour day at the pro-rata daily rate applicable to Night Chief Dispatcher for August 30, 1971.

 OPINION OF BOARD: On October 3, 1968 an Agreement was reached among
 two carriers, the Joint Texas Division of Chicago,
 Rock Island and Pacific Company-Fort Worth and Denver Railway Company
 (JTD) and the Fort Worth and Denver Railway Company (FW&D), and the
 American Train Dispatchers Association. Pursuant to this Agreement the
 train dispatching facilities at Teague, Texas on the JTD and Wichita
 Falls, Texas on the FW&D were consolidated and coordinated into a FW&D
 train dispatching office located at Fort Worth, Texas. This agreement
 was effective January 21, 1969 and thereafter the trains of both car
 riers were dispatched from the consolidated FW&D-JTD train dispatching
 office at Fort Worth, Texas.

 On Monday, August 30, 1971, Joint Texas Division Trainmaster J. W. Wood, at Teague, Texas issued three circulars Nos. 63, 64 and 65 reading in part as follows:













On September 27, 1971 claim was made on behalf of K. C. Vanderveer, Relief Dispatcher as follows


This claim from its inception has been handled on the proposition that the trainmaster performed the circulars. Close examination of the record shows that, not withstanding certain cosmetic changes the contention of the Organization that the issuance of vacancy and assignment circulars concerning telegraphers' positions is by the Agreement - supported by history, reserved to Chief Dispatcher. Accordingly, the Organization claims that the issuance of the three circulars, supra, by the Trainmaster violated the Agreements between the parties.

 The Organization in support of its claim primarily relies upon Rules 1 and 3 of the Schedule Agreement and Section 3 of the October 3, 1968 Memorandum Agreeme


1. j












In order to sustain its contention that Rules 1 and 3 of the Schedule Agreement were violated herein, the Organization must show that these rules clearly reserve to the Chief Dispatcher an exclusive right to the work complained of; or in the absence of such express reservation, must demonstrate by probative evidence that custom, practice and tradition have reserved such work t
Rule 1 is a general scope rule and lends no support to the Organization's theory of an express reservation of the work to the Chief Dispatcher. Nor can the Organization find support in Rule 3 supra. That provision recognizes that the class of employees described have assigned to them some supervisory work; but of what type and to what extent is not described. It doe to these employees the sole supervision "of train dispatchers and other similar employes." (See Award 18448)


Having failed to show express contractual reservation of the work in question, Petitioner has the burden of proving that the Chief Dispatcher has performed the work historically, customarily, and traditionally to the exclusion of others. This is a principle too fundamental to require further exp have from time to time in the past issued circulars and advertisements. On the other hand, Carrier argues that the issuance of bulletins, notices and/or circulars is not a function which is reserved exclusively to the Chief Train Dispatchers, since same are also issued by roadmasters, trainmasters, division engineers, superintendents, general superintendents and department heads. The Organization's argument regarding exclusivity is further eroded by the position taken by its General Chairman in correspondence on the property, w this claim the Organization representative states:



Analysis of all the relevant evidence on this point fails to support the Organization's contention that the issuance of such advertisements and circulars has been performed customarily, and historically on this property by the Chief Dispatchers
In summary, there is neither rule support nor convincing evidence of custom, practice and exclus Organization's claim to this work. It follows ineluctably from the foregoing that the Organization's reliance on Section 3 of the Memorandum Agreement similarly can be of no avail. Accordingly, the Organization has not carried the requisite burden of proof that the issuance of telegrapher advertisements and in some manner violated the Organization's Agreements.






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



        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD &Zglliee By Order of Third Division


        ATTEST: ~·~, Executive Secretary


        Dated at Chicago, Illinois, this 13th day of December 1974.


i
              Dissent to Award 20539, Docket TD-20171


Award 20539 even if considered in the most favorable light can only be found to be palpably erroneous.

 The parties by a Memorandum of Agreement signed October 3, 1968 agreed to the consolidation of the present F'rtD and JTD train dispatching offices into one "Consolidated 7,,,,D-JTD Train Dispatching Office" to be located at Fort Worth, Texas subject to and governed by the terns and conditions of this Memorandum of Agreement. One of the terms and conditions in Section 3 was " .., all of the train dispatcher duties now being performed at Teague end Wichita Falls, Texas, ;sill be transferred to Fort Worth and the trains of both carriers will be dispatched from the 'Consolidated FSID-fTD Train Dispatching Office' at Fort Worth".

 At the dispatching offices at Teague and Wichita Falls prior to and at the time of the consolidation into the single disratching office at Fort Worth, the supervision of tele.-raphers involved in the issuance of circulars which bulletined or made assignments to telegrapher assignments was work being performed by the train dispatcher craft (the Chief Train Dispatcher at Teague and the Chief Train Dispatcher at IUchita Fal1s)under the terms of Rile 3 of the Schedule Agreement defining the duties of other than Trick Train Dispatchers. The Carrier partially complied with the tern and condition of the ;Memorandum of Agreement, requiring all of the train dispatcher duties being performed be transferred to Fort Worth, by transferring the supervision of telegraphers involved in the issuance of circulars which bulletined or made assignments to telegrapher assignments from the Wichita Falls dispatching office to the consolidated Fort Worth office. However, the Carrier failed to transfer identical work from the Teague office to the Fort Worth office in violation of the term and condition that all of the train dispatcher duties being performed at Teague and Wichita Falls would be transferred to the Fort Worth office.

 The instant claim followed and the Employes on the property presented detailed proof that the supervision of other similar employes, i.e. telegraphers, involved in the issuance of circulars which bulletined or made assignments to telegrapher assignments was work that was performed by the train dispatcher craft prior to, at the time of, and subsequent to the consolidation into the single dispatching office at Fcrt Worth. When the complex handling of the claim on the property failed to resolve the issue, the dispute ;ass submitted to the Third Division for adjudication under Docket TD-20171. The claim submitted to the Board for consideration was in two parts: (1) violation of the October 3, 1968 Memorandum of Agreement, Section 3 thereof in particular,
        Dissent to Award 20539, Docket TD-20171 (Cont'd)


        which required all train dispatcher duties then being performed at Teague and Wichita Falls be transferred to Fort Worth, and (2) violation of the Schedule Agreement, Rules 1 and 3 thereof in particular, involving supervision of train dispatchers and other similar employes.


        In Award 20539 the Board did not consider the two parts of the Statement of Claim in order but ccnsiuered the second part first. In fact, Award 20539 concludes by rejecting the first ground for the claim in an off-hand manner electing to ignore the fact that the Memorandum of Agreement agreeing to the office consolidation :.as based on certain terms and conditions, one of which was the understanding that all of the train dispatcher duties being performed at Teague and Wichita :,ails would be transferred to the consolidated office to be established at Fort Worth, Texas.


        Award 20539, bY passing the primary claim in the dispute, considers Schedule Agreement Rules 1 and 3 and considering Rule 3 states:


              "`.Inat provision recognizes that the class of employees described have assigned to then some supervisors- work; but of what t-~Te and to that extent is not described. It does not definitely and exclusively reserve to these employees the sole supervision 'of train dispatchers and other similar employes."'


        Award 20539 holds that in the absence of an express contractual. reservation of the work in question the Employes were required to furnish proof based on history, custom and tradition that the train dispatcher craft performed this work to the exclusion of others. Award 20539 then states:


              "*NN In this connection, the Organization has presented evidence which tends to show that Chief Dispatchers have from time to time in the past issued circulars and advertisements. On the other hand, Carrier argues that she issuance of bulletins, notices and/or circulars is not a function which is reserved exclusively to the Chief Train Dispatchers, since srune are also issued by rovumasters, trainmasters, division engineers, superintendents, gener superintendents and department heads.


                                -2-


I
 Dissent to Award 20539, Docket TD-20171 (Cont'd)

 This portion quoted shows some of the serious error committed by Award 20539 for it is true that the Lnployes presented evidence proving their contentions while the Carrier simply argued. The Carrier aid not present a single shred of evidence to bolster their arguments that others issued any bulletins whether they were telelgrapher bulletins or not. The Carrier argued but did not furnish any proof of its contentions. Mrard 20539 m2-,^nifies its error by manufacturing or creating an erosion in the Organization's argument citing from a letter from the General Chairman, viz.:

        "'The Carrier takes the position that the issuance of bulletins, circulars and/or notices is not a function which is reserved exclusively to the Chief Dispatcher.


        To clarify our position further I should like to state that we are not clairinr that ire have the e::clusive right ;;o ~csue 'clullztins, notices -nd/or circulaxc. We are claiming that the thoup_iit process of making a determination as to whom a position should be aw the work of the Chief Dispatcher as well as causing such notices as may be necessary to be issued.' (Emphasis added)"


However, Award 20539 fails to read this clarification made by the General Chairman, in answer to a Carrier's contention on the property, in the proper context iirhich was a direct reply to a point raised in defense against the claim by the Carrier. Of even greater importance is the fact that Award 20539 fails to recognize that the next statement in the same letter had not "further eroded" the Organization's arr,~-ument regarding exclusivity for the next; paragraph of this letter reads:

        "As further proof that the work in question has always been the function of the Chief Dispatcher on the Fort North and Denver Rail-,.my I enclose xerox copy of a sworn statement of bfr. M. A. ravis vho is a retired fort North and Denver employee dated Oct. 2, 1972. You will note that Mr. Davis states that he worked from April 1926 to January 1969 as Telegrapher and/or Telegrapher Clerk, as Might Clerk in the Chief Dispatcher: office and extra train dispatcher, as regular dispatcher and Chief Dispatcher and again as regular dispatcher and that, to his personal knowledge, during his entire time of employment on the Fort Worth and Denver =ailway the duties we have in question here were performed by the Chief Dispatcher. Note this is not a direct quote but is in substance what Mr. Davis means."


                        -3-

Dissent to Award 20539, Docket TD-20171 (Cont'd)

 The sworn affidavit which was submitt^d with this letter attests to a history, custom and tradition of some 43 years duration and could hardly be construed to be a "time to time in the past" showing as Award 20539 states. The Carrier never bothered to answer or in any way dispute or refute the sworn affidavit presented on the property.

 The sworn affidavit did not stand alone as proof of the history, custom and tradition pe:rforrance of the work. In addition, the Dnployes presented Ci=c,-,Iars dated S.epte^~ber 7, 1954, July 2, 1962 and January 1, 1903 as proof of prior performance of this work by the train dispatcher craft. It is not as A1-rsrd 20539 states a lack of proof or evidence but it is a case of the evidence and proof being i.,~nored. The evidence and proof were in the record and the Carrier did not offer any counter evidence or ;roof.

 While the record of proceedings of the Adjustment Board on which Award 20539 based it,-, action wi11 reveal that the Carrier Member falsely submitted to the Referee that certain Exhibits 1-sere not subtaitted to the Carrier during the hanclling of the claim on the property, this is not the most serious error contained in the record of proceedin.g of the Adjustment Board in ::ward 1-053'). f;--, , nnr,~,n i..-1 ttlat-i._ i_~..1--yn- m,i.G+·, bear 2 history, custcn and tradition burden of proof of the work performed and then ignored ';,he Employes' clear evidence (the only evidence of history, custom and tradition presented in Docket "T-20171), simply because the "Carrier argues" to the contrary. Argument; are not a substitute for nor do they overcome evidence or proof.

    Award 20539 is at best palpably erroneous and I most vigorously dissent.


                                      J. P. Erickson

                                      Labor Member