NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TE-16516
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
( (formerly Transportation-Communication Employees Union)
PARTIES TO DISPUTE:
(New York, Susquehanna and Western Railroad Company
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Com
munication Employees Union on the New York, Susquehanna
and Western Railroad, that:
CLAIM I
1. Carrier violated the Agreement between the parties when on October
21, 1963, without conference or agreement, it declared the agent-operator position at Midland Park,
agency position at North Hawthorne, New Jersey.
2. Carrier shall, because of said violation, commencing with October
21, 1963 and continuing thereafter until violation is corrected, be required to
compensate the following employees the amounts specified for each day the violation exists:
(a) Mr. S. K. Dennis, former incumbent of agent-operator position at
Midland Park, New Jersey, nine (9) hours' pay at the Midland Park rate in addition to any other wage
(b) Mr. R. A. Fant, former agent at Vreeland Avenue, New Jersey, or
his successor, a day's pay (eight hours) at the Vreeland Avenue rate in addition
to any other wages he may be paid plus any expenses incurred.
(c) Mr. Stanley Kowalski, agent-operator at North Hawthorne, New Jersey,
or any employee who may otherwise work the agent-operator position at North Hawthorne, a day's wages
wages he may otherwise be paid.
3. Carrier shall permit a joint check of records to ascertain the
amounts due employees identified in Item (2) above.
CLAIM II
1. Carrier violated the Agreement between the parties when on July 3,
1964, without conference or agreement, it declared the agent-operator position
at Lodi, New Jersey abolished without abolishing the work thereof which work has
been unilaterally combined with the agency position at Maywood, New Jersey.
Award Number 20723 Page 2
Docket Number TE-16516
2. Carrier shall because of said violation, commencing with July 3,
1964 and continuing thereafter until violation is corrected, be required to
compensate the following employees the amounts specified for each day the violation exists:
(a) Mr. S. Dennis, former incumbent of agent-operator position at
Lodi, New Jersey, or his successor, a day's pay and expenses incurred in addition to any wages he ma
(b) Mr. E. Wiley, former agent at Maywood, New Jersey, his successor
or the senior idle employee (extra in preference) for a day's pay at the Maywood
rate, plus any expenses incurred in addition to any wages he may otherwise be
paid.
3. Carrier shall restore the abolished position to its former status.
4. Carrier shall permit a joint check of records to ascertain the
amounts due claimants.
CLAIM III
1. Carrier violated the Agreement between the parties when on February
17, 1964, without conference or agreement, it declared the agent-operator position at Rochelle Park,
which work has been assigned to other employees.
2. Carrier shall, because of said violation, commencing on February
17, 1964, and continuing thereafter until violation is corrected, be required to
compensate the following employees the amounts specified for each day the violation exists:
(a) Mr. C. L. Meade, former incumbent of agent-operator position at
Rochelle Park, New Jersey, or his successor, a day's pay and expenses incurred
in addition to any wages he may otherwise be paid.
(b) Mr. S. Kowalski, former agent at North Hawthorne, New Jersey, or
his successor, a day's pay at the North Hawthorne rate plus any expenses incurred
in addition to any wages he may otherwise be paid.
(c) Mr. S. Spence, former agent at Vreeland Avenue, New Jersey, or his
successor, for a day's pay and expenses incurred in addition to any wages he may
otherwise be paid.
(d) Mr. G. Hearns, occupant of agent-operator position at Babbitt, New
Jersey, or any employee who may otherwise work the agent-operator position at
Babbitt, a day's pay at the Rochelle Park rate in addition to any wages he may
otherwise be paid.
Award Number 20723 Page 3
Docket Number TE-16516
(e) Mr. E. Wiley, occupant of the agent-operator position at Maywood, New Jersey, or any
employee who
may otherwise work the agent-operator
position at Maywood, a day's pay at the Rochelle Park rate in addition to any
wages he may otherwise be paid.
3,- Carrier shall restore the abolished position to its former status.
4. Carrier shall permit a joint check of records to ascertain the
amounts due claimants.
CLAIM IV
1. Carrier violates the Agreement between the parties when a clerk
and other employees not covered by the Agreement are allowed to perform work at
Passaic Junction, New Jersey on Saturdays and Sundays, which work is assigned
to and performed by the agent-operator Monday through Friday of each week.
2. Carrier shall compensate Mr. T. F. Braithwaite, agent-operator,
Passaic Junction, for a three hour call at time and one-half rate for each day
such violation occurs.
3. Carrier shall permit joint check of records to determine dates of
violations and amount due claimant.
CLAIM V
1. Carrier violates the
Agreement between
the parties by declaring
the position of car distributor, Paterson, New Jersey, abolished, without, in
fact, abolishing the work
thereof but
instead transferring the work to employees
not covered by the Agreement.
2. Carrier shall compensate, commencing sixty days prior to the filing
of this claim, the senior idle telegrapher, extra in preference, one day's pay
for each day the violation continues to exist.
3. Carrier shall permit a joint check of records to determine names of
claimants and amounts due each claimant.
CLAIM VI
1. Carrier violates the Agreement between the parties by requiring
and permitting employees not covered by the Agreement to handle remote control
devices at Paterson, New Jersey.
2. Carrier shall be required, because of said violations and commencir
sixty (60) days prior to the filing of this claim and continuing until such viola
tions are corrected, to compensate the following employees the amounts specified
for each eight hour tour of duty during which the violations continue:
_j
Award Number 20723 Page 4
Docket Number TE-16516
(a) The senior idle employee (extra in preference) a day's wages
at the lowest rate shown in wage scale.
(b) In the event that no idle employee is available, Carrier shall
divide compensation, based upon a day's wages for each eight hour tour of duty
at the lowest rate in the wage scale, among telegrapher
employees based
upon
seniority standing in addition to any wages that may be otherwise paid to such
employees.
3. Carrier shall ailjw a joint check of records to ascertain names
of claimants and amounts due each claimant.
4. Carrier shall be required to assign telegrapher employees to man
the remote control devices at Paterson dispatchers' office.
CLAIM VII
1. Carrier violates the Agreement between the parties by not paying
Mr. J. C. Cooke, present incumbent of Sparta-Sparta Junction, New Jersey, for
the number of hours of work each day as provided for in the Agreement.
2. Carrier shall compensate Mr. J. C. Cooke or any other
employee who
may work the position at Sparta-Sparta Junction for one hour at the time and onehalf rate of the
the violation exists.
3. Ga=rier shall reinstate the posit'on at Sparta-Sparta Junction on
a nine hour daily basis as provided for in the MeTLOrandum of Agreement.
4. Carrier shall permit a joint check of records to determine the
names of all claimants and amounts due each claimant.
CLAIM VIII
Carrier shall allow each of the above listed claims as presented because
of its failure to observe the provisions of Rule 38 - Time Limits - of the Agreement bcLweea t:-= Pd
Award Number 20723 Page 5
Docket Number TE-16516
OPINION OF BOARD; There are eight claims in this case and they will
be dealt with separately and in numerical order.
CLAIM I
A special agreement signed by the parties on April 12, 1957
provided that each incumbent of certain positions would be allowed nine
consecutive hours each working day (including one hour overtime) and that
the agreement would remain in effect until modified in accordance with the
Railway Labor Act, as amended.
The Agreement covered the combination of Wortendyke-Midland Park
Agencies, known as Midland Park Position.
On October 21, 1963, without conference or agreement, Carrier
abolished the Midland Park Agency Position. S. K. Dennis, whose position
was abolished, displaced Mr. R. A. Fant from the Agency Position at Vree=
land Avenue, and, as a consequence, `.L.Fant is unable to hold a regular position, thus greatly redu
Hawthorne as a result of the change.
It appears that the effect of the modification was to transfer the
handling of paper work to North Hawthorne. This was not a case where a position was abolished becaus
long as new work remains in connection with a position, the seniority rights
of the employee, who held the job abolished, attach to the work.
After reviewing the entire file on this claim, the Board finds that
Carrier did not comply with the sixty day provision of Rule 38 which requires
it to give timely notice in writing to the employe involved or his representative of disallowance of
violation, all claimants must be allowed their claims as presented up to and
including June 5, 1965, the date of receipt by the Organization of Carrier's
denial.
On the substantive aspects of the case, the Board finds that Carrier violated the Agreement betw
thereof to the agency position at North Hawthorne, New Jersey. However, the
Board holds that Claimants Dennis and Kowalski suffered no actual damages
and may have no compensation awarded to them, other than for the procedural
violation set forth above. With respect to tue period subsequent to June 5,
1965, Claimant Fant is allowed a s.rn equal to the total amount of reduction
in his earnings as a result of the change made by Carrier.
Award Number 20723 Page 6
Docket Number TE-16516
CLAIM II
The agent-operator positions at Lodi and Maywood, New Jersey
were negotiated into a June 18, 1957 agreement between the parties.
On July 3, 1964 the Lodi position was abolished, without conference or agreement, and the work o
Agent at Maywood.
Doubtless, the motives of the Carrier were good in making the
change involved here, but, since the change infringed upon the terms of
its agreement with its employees, negotiation not ex parte action should
have been the procedure followed.
After reviewing this claim, the Board finds that Carrier violated'
the applicable Time Limits rule and, because of this procedural violation,
the claim should be allowed as presented up to and including June 5, 1965,
the date of receipt by the Organization of Carrier's denial.
As to the substantive aspects of the claim, the Board finds that
there was a violation of the agreement. However, since there was no proof
of actual damages, no compensation can be allowed in addition to that
allowed for the procedural violation.
CLAIM III
The agent-operator position at Rochelle Park, New Jersey was
negotiated into the agreement of June 18, 1957 between the parties.
On February 17, 1964 this position was abolished, without conference or agreement, and the work
New Jersey and Agent Hearns at Babbitt, New Jersey.
This ex parts action of-the Carrier was in violation of the Agreement. However, no compensation
dispute because Claimants did not meet their burden of proving actual damages.
The Board does find that Carrier violated the Time Limits Rule and
therefore allows the claims as presented up to and including June 5, 1965,
the date of receipt by the Organization of Carrier's denial.
CLAIM IV
Prior :o May 1°.60, Carrier maintained at Passaic Junction, New
Jarscy an agent-operator and LWo operator-clerk, 7 days per week, that performed work related to the
care and clerical work in addition to the communication work.
Award Number 20723 Page 7
Docket Number TE-16516
The Organization contends that the Carrier violated the Telegraphers' Agreement between the part
not covered by the Agreement were allowed to perform work at Passaic Junction on Saturdays and Sunda
The Organization also contends that although it agreed to waive
the time limits until a conference was held on February 17, 1965 that no
further extension of time limits was agreed to following this conference.
The Organization states that since the Carrier failed to give reasons for
denial of the claim until June 2, 1965, it
exceeded the
60 day time limit
provisions of Rule 38 and that tha clairi must be allowed as presented.
the Board finds that there wis a violation of the Time Limits
Rule and cherefore sustains the claim for the period beginning with the date
of the claim and ending June 5, 1965, the date of receipt by the Organization of Carrier's denial.
As to the ssbstantive aspoc-s of the dispute, the Board is persuaded that the Organization faile
on Saturdays and Sundays that should have becu performed by telegraphers.
The record indicates, among other things, that Carrier had a long practice
of having a man at Passaic Junction to check ice and ventilation but this
did not constitute a violation of the Telegraphers' Agreement.
CLAIM V
A review of this case indicates that the claim was appealed to
R. E, Sease, President and General `~2nager of the Carrier on September 27,
1962, and that he failed to disallow the claim within the 60 day time limits
required by
the rules.
General Chairman R. E. Matthews made it clear that the Organization was willing to confer about
under the Time Limits Yule.
The denial made by the highest Carrier Officer on June 2, 1965
was the first denial made by him since the September 27, 1962 appeal. Thus,
it ii clear that the 60 day tire 1im=__s have been violated and that the claim
must be allowed for the period begin^ing with the date the claim was filed
until June 5, 1965, the date of the re2ceipt by the Organization of Carrier's
untimely denial.
Turning to the substantive aspects of the dispute, the Board notes
the Organization contends that Czrrior abolished the car distributor position
at Paterson. New Jersey, without nbc'ishin.- ;:he work
thereof. It
further
argues that a prrt of the duties e-'
-he
same
were assigned
to employes not
covered 1
-y the Tclegraphers' Ag?-e_me-t. We find that the position of Car
Distributor was negotiated into t= telegraphers' Agreement,
effective June
Award Number 20723 Page 8
Docket Number TE-16516
18, 1957. While the evidence indicates that the work of the car distributor position diminished,
finds that dispatchers took car orders formerly handled by the Car Distributor and that cars were di
Telegraphers' Agreement.
After reviewing all the evidence, we find a violation of the
Telegraphers' Agreement and sustain the claim on the merits for the period
subsequent to June 5, 1965.
CLAIM VI
Beginning about September 7, 1962, Carrier commenced a single
track operation extending from Croxton, New Jersey to M.P. 11 just west of
Little Ferry, operating signals and switches governing this portion of the
track by remote control devices located in the train dispatchers offices
at Paterson, New Jersey. The devices were manned by dispatchers, men not
covered by the Telegraphers' Agreement.
The Organization contends that remote control devices should be
operated by telegrapher class employees and that permitting employees of
another class to handle such devices constitutes a violation of their
Agreement.
The claim involved here was appealed to the highest designated
Carrier officer on April 20, 1964, was discussed in conferences on February
17, 1965 and May 4, 1965 and was disallowed by letter dated June 2, 1965
which letter was received by the General Chairman on June 5, 1965.
The organization contends that the claim should be sustained as
presented because the Carrier failed at the highest level of handling to
disallow the claim within 60 days of its appeal.
It appears to the Board that there was a violation of the time
limits rule and the claim should be sustained for the period beginning with
the date of the claim until June 5, 1965, the date of receipt by the Organization of Carrier's untim
Turning to the substantive aspects of the dispute, the Board
finds that the new system involved the handling of signals and switches
handled previously by operators and
·;)rk
belonging to the Telegraphers. It
concerned the p~otect_on of train movements formerly taken care of by telegraphers such as block ope
i
Award Number 20723 Page 9
Docket Number TE-16516
In view of the foregoing, the Board has concluded that Carrier
violated the Telegraphers' Agreement by allowing employees not covered by
it to perform the disputed work. Therefore, the claim is sustained for
the period subsequent to June 5, 1965.
CLAIM VII
General Chairman R. L. Matthews and Sunnrintendent T. R. Murphy
extended the time limit on the: s::bject claim c:~ :,. C. Cooke until June
30, 1963.
The General Chairman asked for a confe-:eace on June 19, 1963 to
discuss this claim. This time and date was agreeable to Superintendent
Murphy.
In a letter dated June 25, 1963 Superintendent Murphy stated:
"Inasmuch as you indicated that you would write us
further on both of these cases, we are agreeable to
extending the time limits on each of these claims
until July 31, 1963. Will you please advise if you
concur in extending the time limits on these claims;
if not, this will serve as a technical denial of the
above mentioned claims."
The Organization contends that since
rlr.
l:urphy, in his letter
of June 25, 1963, failed to give any reasons for his denial of claim as
provided in the Time Limit Rule there was a violation of Rule 38.
Moreover, the Organization points out that the case was discussed
in conference with Director of Personnel C. W. Schroeder on February 17,
1965, both on its merits and the time limit aspect, and Mr. Schroeder stated
he would give his decision in writing within a month.
The case was again discussed in conference on May 4, 1965 and was
denied by Carrier's letter of June 2, 1965.
The Board finds that the Time Limits Rule was violated and that
the claim should be sustained for the period beginning with the date of the
claim and ending June 5, 1965, the date of receipt by the Organization of
Carrier's untimely denial.
Now we turn to the substantive aspects of the dispute.
In this case there ·aas a memorandum of agreement covering the
performance of certain services by tae Agert at Sparta Junction, New Jersey.
Carrier indicates that it covered trcvn.l. between Sparta Junction and Blairstown, N;:w Jersey and p
of du=y of 9 hours.
Award Number 20723 Page 10
Docket Number TE-16516
Subsequent to the conclusion of the aforesaid Agreement, Carrier was authorized to abandon a par
for the allocation of time in excess of 7 hours was to provide compensation
for the use of a personal automobile to cover the territory. Since the railroad west of MP 63.21 was
In view of the unusual circumstances in this case, involving the
abolishing of some of the work, the Board does not believe that Carrier
should be regarded as having violated the Agreement.
CLAIM VIII
Claim VIII is simply a contention that each of the claims 1 thru
7 should be sustained because of the
alleged failure
of Carrier to observe
the provisions of Rule 38, the Time Limits Rule, of the Agreement between
the parties.
In view of the fact that the Board has sustained claims 1 through
7 up to and including June 5, 1965 on procedural grounds, we can only reassert
such result for the purpose of disposing of this 8th 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
That the Carrier violated the Agreement between the parties in
each of the claims submitted, 1 through 7, in the ways previously described
herein, that Claim VIII simply involves the contention that Carrier violated
the Time Limits Rule in Claims 1 through 7, and that Carrier did violate
such Rule in each of the first seven claims.
A W A R D
The first and third paragraphs of Claim I are sustained and the
second paragraph is sustained to the
extent set
forth in the opinion dealing
with such claim.
The first, third and fourth paragraphs of Claim II are sustained.
The second paragraph of such claim in eustaineu on procedural grounds to the
extent sat forth in the opinion.
Award Number 20723 Page 11
Docket Number TE-16516
The first, third and fourth numbered paragraphs of Claim III
are sustained. The second paragraph is sustained on procedural grounds
up to and including June 5, 1965.
The first paragraph of Claim IV is denied on the substantive
issues. The second paragraph is sustained on procedural grounds to the
extent set forth in the opinion. The third paragraph of Claim IV is
sustained.
The first and third paragraphs of Claim V are sustained. The
second paragraph is sustained on procedural grounds up to and including
June 5, 1965 and is sustained on the merits for the period subsequent
thereto.
Claim VI is sustained with respect to paragraphs numbered one,
three and four. Paragraph two of such claim is sustained up to and including June 5, 1965 on procedu
Paragraphs one and three of Claim VII are denied on substantive
grounds. Paragraph two is sustained with respect to the period up to and
including June 5, 1965 because of a procedural violation. Paragraph four
of Claim VII is sustained.
Claim VIII -- All claims 1 through 7 are sustained on procedural
grounds to the extent set forth in the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST
cutive Secretary
Dated at Chicago, Illinois, this 16th day of Nay 1975.
CA.R.RIM ;·.T"_"'-,.^,·
TCc·u777
TO AWARD ,·n
121723 _
-
.,.
r~t.*,.a.~
l:n.
_,~s,.;
lRr^,:-_-,.'r uy,·~gl
"M-As A~;a:d is a co-.plete :^.:_-_lity. It is witi:out dou:)t a trave:;ty o''
· ^- t forty. by the 2cferee is to nm;letely
to arr_·re at tilz onclns.,cas let
ignore the respcnzibility oz' 'Ile =oard i.n apply the clear provisions o.'-..:__
egr^e:::lt.
The notice o: i;tt~nt ~;,~ tY.e or ;nnizatien to file a
this !~rd
,:-az3
Ture 1~ 2!
~(. . A
.r^.
i__ aA
n_ _.tytaainYOlt
c
d and,
2E 'nCl J7_=.j a _-
.,i
quu;a-:, , tkie Jr,--anizGtioa!
;,ue
aisp,. a was held is abeyance.
' ·'a. Party :_c:er · ,3 as not held until recember
lr,71
at :;':izh hear-
/: fk':' hJ_ '.:n w , , !
in
~.:3
T::i_':1 i~J~ ' eareU~.~e'Slellt°_:~. r:vid(aice and
~f
to 'i11.Y ! _ i
.,.led a
3ult'i 15s1.C.1.
C= .1,^
t:as
--loaedd
on ebn%ry
=9!
1972 an]
d:i.LucuC=-?,` , in
pan:1 Wit~i
the Neutral on ::ov~imber
9,
1972. On
J7-11Y
9! 1973 a proposed ;cw:ard was recc'.v'ed!
e::actly eiZnt months after the first dsztasion.
The case was re-discussed on Aulst 30! 1973 with the T:eutral and t:e
'. , proposed A;:ard .;-,as recei-red Jancrary 16! 7.97.':! four and oale-`la l_
re-O'P:Jnt^i of t~' ti"_e re-disco=zi:7n. On :'·f.·-.'r
C"1
i,3!
19711! a
.':CCOn~
re
-..
'~hc· pv_pc: z:' :;;:;_.-d :ras 'eia oath the :-'e·L~.ra~ and it was no+, until .'
' :.!
tk,.~,- ,.,:·cr:eiv:~d the ^e-revised Av-.~,9, from the ::eutral. I.ppreximatcl·:
e=~rsec. :~fo_·e x- -·eceived t^.e pre^ent s,.-call-,] Award.
A73
to Clwin".is I! 11 and 171: Tfqe Avard erroneously su:talt'.5
t7.
-v7Gla
t ion of the Ag·cement and also sustai.as a ,joint check of record- to ascertain
tae amo·rnts due ciair"nts. It also sustains the preaosterous
3;_~a;;c
claim: of
the orE;anization as set forth therein and sustains restoration of the i,ositions
in Clai=.s II and III. Claim IV also sustains permission of joint check.
This rrachiavellian arproach completely ignores th:· basic pr'n~i~^r .^.._
tenets of this Board and is not supported by the record, by the rulc3 ia·Tolver'^
or precedent Awards of this Division.
As to Claims Y end 1:: 7nese ere the claims which involve t?ie :1.°··rJ..^_.n
Tram Dispatchers Association.
AC
c:entirned above! this crganiz;ltien r_Ip.car;^~
al, the hearing ar_1 rres_·nec· :;·.;~incir~; cvideeace and :filed a submisson
0:
a^
ha_If of the emplo~,·es it x·ep:·c-^~-r_t.~
;Ilttl rp~;,e,^.t. r:o
CIE--
V: ?t ·,s: ^leeriy r^onm t:-i+ -·ar ci?st^;:o';t:,
tic
5
a
1-:~ _ : .:?°i~
~:3rllii'd
l:y
'::".
Ciac-
`-.^..t.^_
ier
who
was
r?st
onsl~)le i0_^ _a:: .; .
'.:`5iC :... ,::(".;V!'t ~t;t -'C=Ci.J~,',' .;i_ oral presef.tation and by wrilt2n a?ri·'
AS
to Claim 'rI: The nnntizedd t,.ct-m
iS
.. ce.·
y.a.1__.f<·is control _ s
y7. . ~ ...._..,
control traffic oyster and is prcperly assigned to train dispat^:.·rs a^d his
aliwys been under their su:I-rvision. A', so, the Award strtes !;h==, tncse claims
Ere sustained opt the merits for the period S·.ibseuuent t0
JUI':c
5, ~n
; t!:1.^. i:i
also tr~te of Claim I covering one clail-ant.'
In this connection, ·.,e cite the fcllowin0, Awards in support of 16h°
well-establis!-ed principles that this <:n=rc' has no a,lthvrit;,· to order re-?stn=lis'.^
571 >, 6907, 8526, 91416, 10743, 10267, 1125,
11-:6, 16729, 1,783,
among others. Also, that the isoa,.d cennot; r°q_li.re Carrier
~.o ;;·wwmit to a Joint cheni:, see Award i.'vs,
933, -037,
11151,
11776, 12739,
1,;?5n, 1c..078,
....^zg others.
See the following A-vardS dv8liao with C T.Ce OTi°:at:LO:::
tI-.j2, 47381
1;703, 8541+, 8660, 10303, 11921, 12257, 151+02, 1g068,
among others.
As to Awaras holdinh mere liatinJ of positions in the cage
schedule
do not; prollibi'~ +.'·: eir aboli;;?=..^.eat, yo»x a ,tentioa is cri:Led to tile f
A·,.-ard Ii.:s.
1333, 1'v501, 1«36, 18666,
arvng others.
To show more clearly the absurdity of this Award, the Neutral*states,
as ;:entiorea above, insofar as
Claim_:
I, V and VI are concern=d that they are
sus'=aire·i en ti,-- me: its for tae per~o: cubaequent to J,-Me y, 1v5. This, de-
·,;pi_te the crystal clea=r snowing above of the long delays involved in this case
cav.:ed by the crf;anizatioa and acqniesne3 in by the Neutral as is cv4-,.Icr,t
?:is wei.^.itc
tea::;:
of alacrity in ret·.:.··niag his proposed Awards to the Division,
1.C.,
t:l.t.'a
moritl'3, fO,ir a-rid one-half y0nth3 and one year. This, ill a_^_d of -tseiP, is proof of the l
Therefore, as to the question of damages:
(a) No damages should be awarded for period claims
were held in
abeyance
at the instance of the
organization awaiting third party notice.
(b) No damages for excessive time consumed by the
Referee in rendering his decision.
Despite denying the substantive aspects of Claim VII, in the
Award
it
is stated that paragraph four of' Claim VII is snstaitied, i.e., -?ratc,sion c):' s
joint check.
'We brlieve that a reaang of this "patchwork quilt" will convey 1!-ore
forcibly then ^lere words of disa2nt can e:.rress the idiosyncrasy invc'_ve9 _..
the perpetration of this monstrosity,
We nustp therefofe re-
7.5t°_ ^'_..`^ mnzt
Sri.,nrmiS dissent th.,r?tc.
if. Fe Me
PL^21CtfOGd
it /
:, C. Ccrter
/i
er
,/ i I
Ga
yo
Naylor
Go Ma
YJW:n
RESPONSE OF REFEREE THOMAS HAYES TO CARRIER MEMBERS'
DISSENT TO AWARD N0. 20723, DOCKET N0. TE-16516
A MATTER OF DELAY'
More than eleven years elapsed from the time of the filing of
Claim No. IV until it was turned over to this Neutral for panel discussion
on November 9, 1972.
More than ten years elapsed from the time of the filing of Claim
No. V until it was turned over to this Neutral for panel discussion on November 9, 1972.
More than nine years elapsed from the time of the filing of Claims
No. I, VI AND VII until they were turned over to this Neutral for panel discussion on November 9, 19
More than eight years elapsed from the time of the filing of
Claims No. II and III until they were turned over to this Neutral for panel
discussion on November 9, 1972.
In fact, Claim No. IV, which was first appealed to the highest
designated Carrier Officer on December 30, 1961, was not even finally denied
on the property until June of 1965 when the other Claims mentioned above
were denied.
As the following chronology will indicate, a number of delays in
the handling of this Docket took place before it was turned over to this
Referee. The chronology which follows sheds some light on the matter.
On November 4, 1966 Carrier mailed to the Third Division of the
National Railroad Adjustment Board its submission in the eight Claims dealt
within this case.
On November 18, 1966 the Executive Secretary of the Third Division,
S. H. Schulty, indicated that all parties had until January 17, 1967 to make
full answer to all matters covered in each others' initial submission..
On January 16, 1967 Carrier requested a thirty day extension of
time in which to file rebuttal to T.C.U.'s initial submission.
On January 16, 1967 Mr. Schulty granted a thirty day extension of
time at the request of Carrier.
On February 13, 1967 H. J. Draney, President of Carrier, requested
an extension of sixty days from February 16, 1967 to make written reply to
employees' submission in this case, and, pursuant to such request, an extension of time was granted
On October 7, 1971, over four years after the letter of Mr.
Schulty indicated that the file w,-s closed and that the dispute would be
placed in line for handling by the Division, a letter was sent giving notice
of the pendency of a dispute before the Third Division, known as Docket No.
TE-16516. This notice was sent to officers of the Brotherhood of Railway,
Airline & Steamship Clerks, American Train Dispatchers Association and the
United Transportation Union.
On October 26, 1971 the Executive Secretary of the Third Division
was advised that the B.R.A.C. would not file a submission in the case. On
November 1, 1971 the American Train Dispatchers Association requested an
additional thirty days after November 4, 1971 to file the submission.
The hearing originally scheduled for November 4, 1971 was postponed and the Docket was reset for
On November 7, 1971 the United Transportation Union indicated that
it would not attend the hearing. On November 16, 1971 the B.R.A.C. indicated
that it would not file a submission.
On December 8, 1971 the American Train Dispatchers Association made
a submission with respect to Claims V and VI.
On December 22, 1971 all parties affected were given until January
21, 1972 to supplement their original submissions. Mr. C. L. Dennis of the
B.R.A.C. requested an extension of time to February 22, 1972 to supplement
original submissions, which extension of time was granted by the Executive
Secretary, E. A. Killeen.
Neither Management nor Labor, neither Carries Members nor Organization Members of the Third Divi
delays in the handling of this Docket before it was turned over to this Neutral for panel discussion
THE ISSUE NEVER RAISED IN PANEL DISCUSSION
Although this Docket was the subject of panel discussion on November 9, 1972, was rediscussed on
Carrier Member present never uttered a single syllable or pointed to a single
document that would indicate the Organization was responsible for delays subsequent to June 5
the allegation:
"No damages should be awarded for period claims
were held in abeyance at the instance of the
organization awaiting third party notice."
Whether Monday morning quarterbacking has convinced the dissenters
that an ordinarily prudent Carrier Member should have made such an allegation
under the circumstances in the discharge of the duty then resting upon him,
I leave for others to decide.
Perhaps the kindest thing that may be said about Carrier Members'
dissent is that deep down it is shallow.
As proof partial of this Referee's contention that the abovementioned argument concerning damage
by H.F.M. Braidwood, the first signatory on the dissent. Surely so concerned
a dissenter would have included such an argument in his Memorandum if it had
the importance in his mind that he places on it in dissent.
THE CYMBAL THAT IS OUT OF TUNE
After having arbitrated scores, yes, hundreds of cases, I have never
once, before this, filed a response to a dissent. However hot the issues,
most members of arbitration boards respect and follow the traditions of civility, believing as they
but a clanging reminder of our need always to rise above the level of the
brute.
MEA CULPA
In their dissent the Carrier Members correctly state the following:
"The case was ...discussed in panel with the Neutral
on November 9, 1972. On July 9, 1973 a proposed Award
was received, exactly eight months after the first discussion.
The case was re-discussed on August 30, 1973 with
the Neutral and the re-discussed proposed Award was received
January 16, 1974, four and one-half months after the re-discussion. On March 13, 1974, a second re-d
proposed Award was held with the Neutral and it was not until
March 11, 1975 that we received the re-revised Award from the
Neutral. Approximately one year elapsed before we received
the present so-called Award."
It is true that the case was first discussed in panel with this
Referee on November 9, 1972, that it was re-argued twice and that a rerevised Award was submitted
It would not excuse the delay to point out that the eight Claims
were initially argued by one Organization Member and subsequently by another
with a significantly different approach to the Claims.
It would not excuse the delay to point out that the case involves
eight Claims, involving seven different factual situations.
It would not excuse the delay to point out that this Referee decided
one hundred eighty nine other arbitration cases and wrote opinions with respect
to the same during the time period involved in handling this Docket.
It would not excuse the delay in this case to point out that in
January of 1973 I was appointed to represent all of the electrical consumers
in the State of Vermont in a case that has already resulted in three decisions by the Vermont Suprem
further in that Court in the weeks ahead.
It would not excuse the delay between November 9, 1972 and March
11, 1975 to point out that during this time period this Referee suffered a
compressed fracture of the back, requiring him to be absolutely prone for
several days and in a full back brace for six months, that several months
later he collapsed with an internal hemorrhage, coming close to the point of
shock and regaining his strength only after many days of rest, that two of
the Referee's children underwent hospitalization and surgery during the period
of the delay and that the youngest child of the Referee, who was brain injured
in 1963, attempted suicide over the loss of a girlfriend and nearly succeeded.
No ...none of these situations totally excuses the delays of the
Referee but, to a person of modest understanding, they might constitute some
small measure of justification or explanation.
CONCLUSION
For each of the dissenting Carrier Members I have but these parting
words: May your body and mind be free of illness; may your home never be
struck by tragedy of any sort. And may no man ever asperse your motives or
impugn your integrity, as you have mine, by the use of the word "machiavelliar"
which means among other things, "characterized by unscrupulous cunning, deception, or dishonesty".
To paraphrase a former President, better the occasional faults of
a Board living in a spirit of charity than the consistent unkindnesses of one
frozen in the ice of its own indifferencel
Dated at Burlington, Vermont this 23rd day of June, 1975.
/s/ THOMAS L. HAYES
Referee
r
( DOCK) NO. TE-16516
APPENDIX A
iv YS&'si
i JIM,40,
'! 4NDUM fOit RisILREE HAYES
As to Claim
ul:
As pointed out by the carrier, the
cloainct.; of ~~iialand ark station was handled in an orderly manner t:rouo
application to ice hoard of Public Utility Commissioners of the ;;tste
of f~evr jersey and npan their authorization under the law the Carrier
proceeded with the necessary procedures under the agreenent to
close or co?bine a station. The employes were notified of impending
hearings before the Board of Public Utility Comriission and entered
no protest.
Also as carrier states it has been repeatedi.y admitted
in conferences that there is no provision of the
agreement
b5
which
employes co-.ald lirr:it the carrier's right to abolish positions.
Rule 15 covers the abolishing positions and carrier eras well ·,vi.thin
its rights in doing so. hearings were held and the employes ware
cognizant o_ them and carrier complied with the agreoment. As stated
in Award No. 19222 (Referee Hayes):
"fhe.agreement between the parties, to the
effect that t::e position occupied by Mr. Lovely would
revert to its former status when he left it, did not
have the consequence of creating a position in perpetuity
and carrier was under no greater restriction to
continue
that position when the work doclinc;d than it would have
been
:v?
ti: respect to any other position far vrh'_ch there
eras insufficient work."
Also attached, in this
connection, are
copies of other awards of
this Division with respect to Dualization.
As to Claims Nos. 2 and 3: The same factual situation
is present in these claims as is present in Claim
rl.
Also, in
Claims =vos. 2 and 3 the employes request the restoration of the
abolished position. This Board is not empowered to restore positions
and this is covered in the awards coveri.n; this subject attached to
this: memorandum.
As to the procedural contentions o.' the organization:
The tine limit provisions of the agreement were followed b3 the
carrier and a proper denial was mudo at the lower levels. See
awards attached to this memorandum v..th respect to reason given for
denial of claims. ~If ft is found that a violation oc!:urrad at the
highest level then he date o1 the denial letter of the hi.,ahe:rt afiic:r
would stop the carrier's liability arising out of its failure to
comply ::ith nrticle V of the Avgust ?.1, 1954 Agreement. woe awards
cworing this matter attached to this rae;7orandum and national
:-. utes Cor2ni-ttee ::ocision No. 16.
i f
t
2
As to Claim No. IV: Carrier set:; forth its ^osition
on page 206 of its initial submission and also on pages 222 to
to 224 of its rebuttal. In addition to the awards cited by the
carrier, attached to this memorandum under Title III are additional
awards covering this subject, i.e., that where the Teleg^aphers'
Scope Rule is general, and in order to establish exclusive rig:~ts
to particular .,;ork under that rule, the eiployes must prove the
existence of a system-wide past practice of exclusive performance.
' In connection w;th the procedural objections, your
attention is called to page 32 of the employes' exparte sc:bm,.ssion
wherein the e;nployees themselves state:
"The General Chairman on June 28, 1962,
waived the time limit requirements of Rule 38. until
the next conference was held."
so there was agreement to extend the time limits. As previously
stated if it is found that .a violation occurred at the hi ?;nest
level then the date of the denial letter of the highest officer
stops the carrier's liability arising out of its failure to
comply with the provisions of Article Y of the August 21, 1954
`;roement. Based on the evidence before us in this record
mere is no merit to the claim and we would respectfully request r.
that the claim on its merits be denied.
As to Claim V As you know this is a third party case
and the American grain Dispatchers Association has filed a submission,
which consists of 12 pages, On page 5 of its submission the
President of the Train Dispatchers states:
"On March let, 1940, the "YS0: Railroad
established its own Chief Dispatchers Office
and went on its own insofar an operation is
concerned. For about 10 years thereafter the
Chief Dispatcher handled all Car Distributor
work on the property . . . ." (T.C.U. Exhibit
#5, page 11).
"Car Distribution has always been handled
by the Chief Dispatcher, who has been responsible for same." (Carrier's Ex Parts Submi
·, page 8) .
"All oarties are so familiar with the
principle of ebb-and-flow that we feel there is
no necessity of bur denint· the record with the
numerous decisions resulting theref^om. The vrork
came from the Chief Di~patctler - it flowed back
to him." (Carrier's reply to employes' exparte
submission, page 4.)."
The carrier also sets forth its position on page 207 of
its ex?arte submission and on page 224 of its rebuttal.
Claim V continued -
Again, as in the previous casos, the date of
the denial letter of the highest officer would stop
the carrier's liability arising out of its failure to
comply with Article V. And, as to the merits, vie
respeofizlly submit that based on the record before
us there is.no merit to the claim a.^.d it should be denied.
Claim VI
Again; as to Claim VI, this is a third party case
and the American Train Dispatchers Association.has filed
a submission covering this claim. pages 6 through 12
of its submission. The employes on pager 10 of
their submission state:
"It is the position of the ATDA that
the appliances at Little Ferry Jet. and Mile
Post 11 are parts of the Carrier's CTC
installation.'
"If this Board finds this to be true
it must also find that ope_·ation of the CTC machine
is properly assigned to the train dispatchers,
inasmuch as the machine is loc::ted in the
train dispatcher's office at ?aterson, New
Jersey.
The employes(train dispatchers) list a large number
of awards on pale 11 of their submission and state
that the holding of such awards can be summed up in
two paragraphs:
1 The weight of authority holds thvt the actual .
operation of a CTC control panel is not the
exclusive work of either train dis_Datchers or
telegraphers - that if the control panel is
located at a point where train dispatchers
are employed it will be manned and operated by
train dispatchers, and if installed at a point
where train dispatchers are not employed then
the control panel may be operated by a telegrapher, BUT,
2 If the control panel is located at a point other
than one at which train dispatchers are employed
and it is operated by telec.;raphers, that operation is to be under the supervision and direction of
The carrier also sets fort:: its position on -pages 208
and 209 of its esparte submission and on page 224 of its
rebuttal.
Claire VI - continued
The' remarks made in connection r~ith Claim V
as to the procedural contentions of the organization,
and as to rn-:rits of the claim, are applicable here.
Claim VII
of
Carrier lists its statement/facts covering
this claim on :page 210 of its ex parte submission and
states as follows with respect to its position:
' "That the memorandum of agreement was no
loner effective with the abandonment of the'
territory embraced thereby.
"That employes cannot claim that tll9.s is
any loner a valid a.aree.ment, any more than
they- could contend that with the disappearance
of all positions within the scope of their
agreement on a property th-^t they still could '
effectively legislate on their own behalf.
"This is another case of an attempt to
place an undue burden upon the company and
obtain remuneration f or work not performed.'.'
also on page 225 of its rebuttal statement it sums it
up.
Again the same remarks in connect on with
Claim V obtain here as to the procedural contentions .
of the organization and as to the merits of the
claim.
Claim VIII
The carrier sets forth its position on
page 211 of its exparbe submission and on page 225
of its retsuttal.
j'
_ 5 _
In summation: As to the merits, the claims before
us here should be denied based on the record presented and
which position has been upheld by numerous a:rac·ds of this
Board, copies of :which are before the neutral.
As to the procedural contentions: It is evident
from the: record that ca-rier denied them at the lol:rer level
and if it is found that a vi,)lation occurred at the highest
level then the carrier is only liable for pavnent from the .
appeal to the highest officer until denial is made. from
the record before us the highest officer denied all claims
on June 2, 1965. Therefore, any liability accruinto the
carrier is stopped as of that date. As specifically
stated in NDC
Decision No
. 16, which is a decision by the.
National Disoutes Committee established by memorandum agree
ment dated j-ay 31, 1963 to decide disputes involving
interpretation or application of certain stated provisions
of specified national nonoperating employee agreements, -
"The National Disputes Committee rules that..
receipt of tae carrier's denial letter dated
December 2?,'1959 stopped the carrier's liability
arising out of its failure to comply with Article .
V of the Au,:ust 21, 1954 Agreement."
This is the situation obtaining in the case before us.
b'.
A.
Braidwood
Ca-rier 1'1embet