NATIONAL RABMAD ADJUSTMENT BOAR
THIRD DIVISION Docket Number CL-20138
(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and
( Station Employes
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
1. Carrier violated the Telegraphers' Agreement (TCU) and the
May 20, 1970 Memorandum Agreement when it required and/or permitted enployes who are not covered by
orders at locations where no employe covered by the T-C Division, BBAC
Agreement is employed, and then failed and refused to compensate claimant
Mrs. M. S. Nelson, as required by Paragraph 2 of the May 20, 1970 Memorandum Agreement. (Carrier's F
2. Carrier shall now be required to compensate Mrs. M. S. Nelson,
Telegrapher, three hours at pro rata rate, as required by the May 20, 1970
Memorandum Agreement for each of the train orders handled on the dates and
at locations outlined in original letter of claim dated November 11, 1970,
for 54 call payments.
OPINION OF BOAR: Carrier maintains among other facilities at North
Little Rock, Arkansas a large classification terminal
comprising several yards. Since 1960 Carrier has used a pneumatic tube
system between the yards and telegraph offices via which papers and documents, including train order
some two miles from the Locust Street telegraph offices (denominated by the
parties and hereinafter "ICS. Tower") to Crest Yard Office; and the other
segment from Crest. Yard to Bowl Yard Office, a distance of approximately
one mile. The record indicates that train orders and clearances are received, copied and distributed
southbound trains out of North Little Rock pick up their orders as necessary
when they pass the NS Tower. Trains operating north and east out of the
terminal get orders and clearances, via the pneumatic tube, at Bowl Yard.
The pneumatic system is utilized to transmit clearance and train
orders to out bound trains at Bowl Yard as follows: Telegraphers at NS
Tower place the clearances and orders in the tube and forward same to Crest
Yard Office; at Crest Yard Office clerical employees (there are no telegraphers assigned at Crest Ya
clearances and train orders from the tube from NS Tower and place them in
the tube to Bowl Yard Office; at Bowl Yard office the clearances and train
e
1
Award Number 20629 Page 2
Docket Number CL-20138
orders are received and removed by Car Foremen who then deliver same
to the train conductor, or crew. (There are no telegraphers assigned at
Bowl Yard).
The gravsmen of the instant claim is that between the dates of
September 16, 1970 and October 29, 1970 train orders were handled a total
of 54 times by Clerks at Crest Yard and Car Foreman at Bowl Yard in the
manner described supra, but that Carrier nonetheless refused to pay a call
for each such handling pursuant to the term of the Memorandum of Agreement between the parties dated
that such payment is mandated by the express language of the Agreement and
that Carrier's refusal to pay the calls is clear violation thereof.
The Agreement at issue reads in pertinent part as follows:
"2. When train orders, or communication which serve the
purpose of train orders, are handled by persons other than
covered by this agreement and train dispatchers at locations
where no employe covered by the T-C Div., BRAC Agreement is
employed, other than under the exceptions set forth in Rule
1(b) (a) (Missouri Pacific); Rule 2(c) (Texas and Louisiana);
and Rule 2(d-4) (Missouri-Illinois), a telegrapher designated
by the district chairman will be allowed a call - three hours
at the
mtnt--
telegrapher pro rata rate applicable on the
seniority district."
In refuting the Organizations position Carrier relies primarily
on the procedural argument that the claim was not timely raised on the
property and upon the substantive contention that the May 20, 1970 Agreement does not apply to Carri
Suffice it to say we are not persuaded by Carrier's allegations of untimeliness, cloaked as they are
dealing here with a "continuing violation", if any. We are satisfied from
our review of the record that the instant claim was filed in accordance
with the time limit on claims rule, upon discovery of the alleged violations.
The major contentions of the parties regard the applicability of
the May 20, 1970 Agreement to the North Little Rock facilities generally
and to Crest Yard and Bowl Yard Offices specifically. This central question turns on the constructio
20, 1970 Agreement. In this connection, Carrier asserts that telegraphers
are Amployed at North Little Rock Terminal,i.e.,at the NS Tower and, therefore, the Agreement has no
inclusive of Locust and Bowl Yard Offices. The Organization, on the other
hand maintains that the Agreement has reference precisely to situations
such as exist at Locust and Bowl Yard Offices where no employe covered by
the T-C Division, BRAC Agreement is employed. Thus the issue for us is
fairly framed in terms of a search for the intention of the parties when
they agreed to use the word "location" in their Agreement.
Award Number 20629 Page 3
Docket Number CL-20138
In problems of contract interpretation where the
meaning of
a
term is not clear, it frequently is instructive to examine the relevant
circumstances surrounding and leading up to the making of the Agreement.
In this connection, we note that each of the parties has cited numerous
Awards of boards of adjustment to support their respective positions.
Careful examination shows that none of the awards cited are dispositive
of this dispute because: 1) Most of the awards cited predate the May 20,
1970 Agreement and involve interpretations of the Scope Rule; 2) Of the
four awards issued by this Division interpreting and applying the May 20
Agreement none is directly on point with the issues now before us. It
should be pointed out also that each of the parties relies on Award No.
29 of Public Law Board 193, involving the pneumatic tube system at North
Little Rock, to support its respective position in this case. Although
we do not find any of the cited awards controlling herein as precedent,
we are persuaded that they formed an important part of the context in
which the parties reached agreement on the language of the May 20, 1970
Memorandum of Agreement. Of special relevance, in this connection is
Award No. 30 of P. L. Board 193.
The May 20, 1970 Agreement was consumated after nearly nine
years of conferences and negotiations between the parties pursuant to
Sec. 6 notices first served in 1961. It is an historical fact that
during this period a series of awards by various boards of adjustment
denied claims of Scope Rule or Train Order Rule violations in connection
with the use of pneumatic tubes for the delivery of trAin orders. See
Award 7343, 8327, 9988 and Award No. 30, S.B.A. 305. It was in this context that the addition
to the parties agreements whereby Carrier agreed to pay a penalty comprising a three hour call when
those covered by the Telegraphers Agreement at locations when no employe
covered by the Telegraphers Agreement is employed. It is especially instructive and significant to n
therein rather than the word "point" which had been used in the old Train
Order Rule.
Award No. 29 of P.L. Board 193 was issued in late October 1969 some
seven months before the consumation of the May 20, 1970 Agreement. That
Award deals with the same parties, the same pneumatic tube system and the same
locus in quo, namely NS Tower, Crest Yard Office and Bowl Yard Office as does
the instant case. Inasmuch as the Award itself construes the old Scope Rule
which is in some respects in material variance with the Agreement we must interpret herein, it is no
that the Opinion of the Board in that award commences with the phrase: "There
are three separate locations involved in this dispute, the NS Tower - Crest
Yard - and Bowl Yard Office" (Emphasis added).
r
Award Number 20629 Page 4
Docket Number CL-20138
It cannot be gainsaid that this Award of P.L. Board 193 was
fresh in the minds of both,parties as they negotiated and consumated
the Nay 20, 1970 Agreement. We find it highly significant that these
parties used the word "locations" as it was used in that Award, rather
than the familiar "point" used in the Train Order or Scope Rule. We
are persuaded by all of the foregoing that for purposes of the May 20,
1970 Agreement the Crest Yard and Bowl Yard Offices are locations to which
the parties intended that Agreement to apply. ,Havlag-so decided it-remains--to be seen whether t
It is itarefuted that no employe covered by the T-C Division,
BRAC Agreement is employed at either Crest or Bowl Yards and we have
found that these each are locations as contenanced by the Agreement.
Having shown this much, the Organization must yet show "handling" by
persons other than those covered by the Telegraph Agreement to support
a proper designation for the penalty call.
Close consideration of the record shows that the capsules
containing train orders are especially marked and may not, by Carrier
instructions, be used for other materials . Under the system described
supra these train orders are encapsulated at Locust Street and sent to
Crest Yard. The unrefuted record shows that these special capsules,
destined for Bowl Yard, are taken from the tube unopened at Crest Yard
and placed in the tube to Bowl Yard Office. In these circumstances we
must find that the employe at Crest Yard is merely an incidental link
in the pneumatic tube system and that transferring unopened transit capsules from one tube to anothe
of the May 20, 1970 Agreement. Consequently, we must deny the claim
insofar as it seeks penalty payments for such activity at Crest Yard
during the claim period.
The claimed
!i'e
= a=
calls for activity at Bowl Yard, however, stand onnaadifferen~ footing.
Regarding the question of handling by Car Foremen who delivered.to con
ductors the train orders coming out of the end of the tube at Bowl Yard,
we are guided by a long line of Awards including our own recent Award
20126
"From our study of the Awards cited by the parties,
and from our study of the 1970 Agreement
...
we conclude
that 'handle' in the Agreement includes 'delivery' of a
train order to the train crew that is to execute the order."
Nee also Awards 12371, 18436 and Award No. 8, Public Law Board No. 713.
Award Number 20629 Page 5
Docket Number CL-20138
Carrier asserts that hand to hand delivery is not required
by the Agreement and that use of the pneumatic tube has been held to
constitute delivery by the telegrapher to the train crew. This assumes,
however, that the recipient at the destination end of the tube is the
conductor or crew. Such was not the case at Bowl Yard as shown by this
record. The Organization
fa
contentions and evidence staff ef ed-t a- i
Car Foremen were the immediate recipients at Bowl Yard Office and they
in turn delivered the train orders to the conductor or crew. Since Bowl
Yard is a location at which no employe covered by the T-C Division, BRAC
Agreement is employed, each -such delivery gives rise to a right in the
instant claim to designate a telegrapher to whom a call must be allowed
by Carrier-(3 hours -at the minimum pro rata rate) under the_May 20 , 1970 _-_
Agreement. We find that Carrier refusal to pay such calls herein does
constitute a clear violation of the May 20, 1970 Agreement. Accordingly,
we shall sustain the claim insofar as it relates to non-payment of the calls
for the handling.of train orders at Bowl Yard by Car Foremen.
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 Employee involved in this dispute are
respectively Carrier and Employee 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
Claim sustained to the extent indicated in the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 7th day of March 1975.
I