(American Train Dispatchers Association PARTIES TO DISPUTE: (Burlington Northern Inc.




"the Carrier", violated and continues to violate the Agreement in effect between the parties, Article 1(b) thereof in particular, when on June 16, 1971 instructions were issued by Superintendent T. W. Mackenroth, Seattle, Washington, File B-1806 p


and further instructions issued by Superintendent T. W. Mackenroth, on June 30, 1971, File S-485


which arbitrarily removed from employes covered by the scope rule of said Agreement, work in Carrier's Tacoma, Washington train dispatching office and assigned t of said Agreement.


(b) Because of said violation, the Carrier shall now be required to compensate the senior available qualified extra train dispatcher one (1) day's pay at th Dispatcher for each day commencing August 16, 1971 and continuing until said violation ceases with the exception of the period between December 23, 1971 and January 24, 1973, inclusive.

 (c) In the event no qualified extra train dispatchers are available on any day or days in the period defined in paragraph (b) above, then and in such event Carrier shall be required to compensate the senior qualified regularly assigned train dispatcher who is available due to observance of his w such days that said violation continues.

 (d) Eligible individual claimants entitled to compensation claimed herein are readily identifiable a by a joint check of the Carrier's records.

 CLAIM #2 - Carrier File DI-84 (t)-11 4/5/72 A
(a) The Burlington Northern Inc. hereinafter referred to as "the Carrier", violated and continues to violate the Agreement in effect between the parties, Article 1(b) thereof in particular, when instructions were issued by the Carrier providing that effective January 1, 1972, supervision of age by Ames Larson at Seattle, Washington, working in the same office with Division Station Inspector D. K. Sorkness and under his immediate supervision, that formerly had been handled by train dispatcher employes under the supervision of th Washington and Klamath Falls, Oregon, which arbitrarily removed from said employes covered by the scope rule of said Agreement, work in Carrier's Vancouver, Washington train dispatching office and assigned that work to employes not within the scope of said Agreement.

 (b) Because of said violation, the Carrier shall now be required to compensate the senior available qualified extra train dispatcher one (1) day's pay at th Dispatcher for each day commencing with January 10, 1972 and continuing until such violation ceases


(c) In the event no qualified extra train dispatchers are available on any day or days in the period defined in paragraph (b) above, then and in such event Carrier shall be required to compensate the senior qualified regularly assigned train dispatcher who is available due to observance of his w such days that said violation continues.

 (d) Eligible individual claimants entitled to compensation claimed herein are readily identifiable and shall be determined by a joint check of the Carrier's records.

 CLAIM #3 - Carrier File DI-84 (t)-11 1/31/73 A
(a) The Burlington Northern Inc., hereinafter referred to as "the Carrier", violated and continues to violate the Agreement in effect between the parties, Article 1(b) thereof in particular, when on November 9, 1972, instructions were issued by Superintendent J. G. . Heimsjo, Spokane, Washington, File C-268 providing that:













          which arbitrarily removed from employes covered by the scope rule of said Agreement, work in Carrier's Spokane, Washington train dispatching office, enabled the Carrier scope of said Agreement.


          (b) Because of said violation, the Carrier shall now be required to compensate the senior available qualified extra train dispatcher one (1) day's pay at th said violation ceases.


          (c) In the event no qualified extra train dispatchers are available on any day or days in the period defined in paragraph (b) above, then and in such event Carrier shall be required to compensate the senior qualified regularly assigned train dispatcher who is available due to observance of his w such days that said violation continues.


          (d) Eligible individual claimants entitled to compensation claimed herein are readily identifiable and shall be determined by a joint check of the Carrier's records.


          CLAIM #4 - Carrier File DI-84 (t)-11 4/26/73


          (a) The Burlington Northern Inc., hereinafter referred to as "the Carrier", violated and continues to violate the Agreement in effect between the parties, Article l(b) thereof in particular, when it removed certain work from Carrier's Missoula, Montana train dispatching office relating to supervision of agent and telegrapher forces theretofore performed by the class of employes represented by this Association, and assigned that work to employes not within the scope of said Agreement in the Telegrapher Control Center in Seattle, Washington.


          (b) Because of said violation, the Carrier shall now be required to compensate the senior available qualified extra train dispatcher one (1) day's pay at th said violation ceases.


          (c) In the event no qualified extra train dispatchers are available an any day or days in the period defined in paragraph (b) above, then and in such event Carrier shall be required to compensate the senior qualified regularly assigned train dispatcher who is available


j
                                Award Number 20821 Page 5

                                Docket Number TD-20703


                due to observance of his weekly rest day, one (1) day's compensation at the punitive rate of Assistant Chief Dispatcher for each of such days that said violation continues.


(d) Eligible individual claimants entitled to compensation claimed herein are readily identifiab I, OPINION OF BOARD: This docket consists of four claims which were
                consolidated by the parties. The claims stem from Carrier's decision to place the responsibility for handlirg Telegraphers in a Telegrapher Contr asserts that the following duties were "transferred from the Chief Dispatchers":


                              1. Employment of Operators

                                  2. Rules examinations for newly employed Operators

                                  3. Maintenance of records of re-examination on rules of all Operators

                                  4. Filling vacancies created by emergencies, illness, vacations, etc. of Operators

                                  5. Assignment of Operators to new positions

                                  6. Responsibility for bulletining of Operators' vacancies

                                  7. Overseeing Hours of Service law application to Operators

                                  8. Maintain Operator seniority records for Hours of Service law inspection by Federal Railroad Administration personnel

                                  9. Assignment of Operators' vacation periods

                                10. Handling time claims and related work with Operators' Local Chairman

                                11. Maintaining Operators' seniority rosters

                                12. Supervision of training of Operators to qualify for various positions

                                13. Maintaining records shoving offices where each Operator has previously worked

                                14. Maintaining records showing which Operators are currently assigned to each position at each station

                                15. Approval of overtime claims of Operators

                                16. Approval of expense claims from Operators

                Award Number 20821 Page 6

                Docket Number TD-20703


The Organization claims a violation of Article 1 - SCOPE and specifically paragraph b of that Article. Paragraphs a and b read:

          "(a) SCOPE.


          This agreement shall govern the hours of service and working conditions of train dispatchers.


          The term 'train dispatcher' as herein used shall include all train dispatchers except one chief train dispatcher in each dispatching office who is not regularly assigned to a shift performing train disp work.


              NOTE: A weekly rest day shall be assigned to each excepted chief train dispatcher position as a part of the weekly schedule of work for any train dispatcher assignment.


              Relief of excepted chief train dispatchers for their annual vacation, and other temporary periods of absence from their positions, shall be made by qualified train dispatchers from the office involved.


              Any permanent appointment to the position of excepted chief train dispatcher shall be made from train dispatchers holding seniority as such, on the same seniority district.


              (b) DEFINITION OF CHIEF AND ASSISTANT CHIEF DISPATC30L$ POSITIONS.


          Positions of chief and assistant chief train dispatchers shall include positions in which the duties of incumbents are to be responsible for the movem on a Division or other assigned territory, involving the supervision of train dispatchers and other similar employees; to supervise the handling of trains an distribution of power and equipment incident thereto; and to perform related work."

                Award Number 20821 Page 7

                Docket Number TD-20703


Carrier's first defense is that claims 1 and 4 must be dismissed because they were not filed wit occurrence as required by Article 24(f). Claim 1 is based on an occurrence of July 1, 1971 and was not filed until September 24, 1971. The Organization seeks to avoid the effect of Article 24 (f) by dating the period of the claim from August 16, 1971 and pointing out that the claim was filed within sixty days of that date. It also argues that the claim is of a continuing nature and therefore can be filed at any time. Neither argument is persuasive.

 The record clearly shows that the date of occurrence for claim No. 1 was July 1, 1971. It also shows that the claim is not a continuing claim but is one based on a specific occurrence. The fact that Carrier's liability, if any, would continue for a period of time does not serve to place the claim in the category of a continuing claim.

 Claim No. 4 was filed on March 11, 1973. The record shows that the occurrence upon which it is based took place on November 20, 1972. The Organization has argued that Carrier has failed to establish the date of occurrence by pro the Organization has not come forward with evidence to controvert it. Based on the state of the record before the Board, the conclusion must be that the date of occurrence is as asserted by Carrier. Since Claim No. 4 and Claim No. 1 were not filed within the period provided by Article 24 (f) they must be dismissed.

 Each of the claims are for "senior available qualified extra train dispatcher". Carrier takes the position that the claims are procedurally defective in that the the Claimant. Such identification is required by Article 24(f), according to Carrier. The Board has cases. Although Carrier seems to insist that the Claimant, or Claimants, must be named, that requirement seems to be overly stringent. The trend of decision by the Board does support the view that if Claimants are not named they must, at least, be readily ascertainable. In Award No. 14668, the Board held that "(the claimants) must be identified in such a manner as to prevent further controversy concerning their identity." The Board went on to state, "the burden is upon the petitioner to prove by evidence in th
                        Award Number 20821 page 8

                        Docket Number TD-20703


                There is, in this-riecoid''no evidence that the identity of

          the employees involved is known to the Carrier. Nor ,caq.it be said

          that the-'C13imaats have been;identifiia-in' a manlier. v_hich wq4d pre-.

          vent~:furthcri!controversy~cohcerdW-their identity., The OrgaUIZO-."

          tion'wees,Ponie^·to Carrier's pef'sistent-objection xb tfie;Ciaiios.;pa.__

          tWgrouadrthat=the abeence-bf s*ifil disi'roants"ylolitfxf..both;,ftpe'..

          parties ''dgreement-and·thevstianai-'k~grement-has been'~hat '" a fic,

          nameseof eIaimAnts-needi--not-he specified;.pi`ayid$a-phat:'thex a~ .

          readilg'·Ueertainable''from4eriferIs'records": "Tt~at'nrinciple is^dt7;;

          established acid the =Bdsrd dbes13oViere-take' issue W"J' :4Fob_

          hem is that the cases have -alad''held triat''ttie!record'tefore 'tIid godrd

          met show, as a matter of fact, that the names are readi.l~r_ascertainable.

          The =recordAd' this-case does -not 1-ron$alu such'a-aridq~ag, ..


          ..z Theiw area number',df ~,xea'sonii' for -this state' `of ;affairs;;,.Intaxtxih6f Keith the, problem`kliscuse'ed>Cbove is anotlier. proT~Zeo~`qad'·~'.. defenae<ifised by Carrier:'''fhe'.'tirgiaiifdtfon''si satimi'ssion'to then.. . ,:_;, Hoard states that the work which vas placed under the jurisdictions" of the Telegrapher Control Center was formerly _performed by, Chief Dispatchelqf9z Carrier has pointed"ouf thct' -"one chief' trd~dispptche,

          inlactr~petehing offmcex Ys" eic40iteit.froel"the' Agreeioea~t;'.xt. argqe&

          that,wtatthe·Organitatioh~3s'-coiniagNabout'here'3s the move of work: from one- of Carriees' e*cepte&"employees tii -adathe,-of ,jt's. a;--. cepted employee a; ~Tbeiefore; taaAek- a-Agues; the'Orge&zktibn could hot makes a.- V&Udfnomplaint- thstwbrki*da= being'taken film 'employeee~epv-- ' _ vereg by-theJAgreement: The xeoinde~-'to this poinC'by'ttx Organiza--: tion hw fieeulto assert=-that-there are Chl-e'fDispatehers who'' e'nob ..excepted friowthe A_areemfaC° The= point hew" not been- taken f~i'rther_ and. there:. is=na4videnee-in'the-record ta'ahor whether supervisibn..ot.., .., telegraphers has been performed, tiy'thief'Dispatcherb'who are ex=" .- '. cepted from the Agreement or by Chief Dispatchers who. are not excepted frcott)the·Agreement: If;--sa'Cairier`,aserts, all ib-has done ip.move supervisory~duties-frcm·onitof`3£s-employees no~-covered.by the:Agree= meat=tdLsaother-of its -emglo~ees=iiot'-covered-by'ths Agreement_,;it'.is.

          difffeult -to=see-' how- the Orgdhizeition!-can compliiiA'that work:,~leinging

          to employeee~eovered by the--Agrveme'fitclidslleingyiiemoved azrom sueeh

          ao"rage by Carrier:- - . _ _ .. . _ . :_., :. - _ ..


          ~r.:.:r-._~ The.barden-of showfh#1tfat4mployees 6ovei4ed'bythe Agree maav4rere performing-thr veirk`'&dmplhinedW neceasa*i?y;falls upon :'the.' OrganizmticWr=-Both pafies agree'that'Chief-Diqdtcbeis_peformed'aupervision of .Te1eg=aphei*-prior't th~ Agabemeht'reflectw"the' fact, that ~some Chief bi'spetchere, are-'ex-`-~ cepte(b.fromt the- Scope.- Ttie .-Organitattoa goes on 'to -say :that same Chief Dispatchers are not excepted and' thst'; at--least W' idterencethey - were doing some or all of the supervision of Telegraphers. However,


i
                Award Number 20821 page 9

                Docket Number TD-20703


this latter point is simply an assertion and there are no facts of record to support it. If the Organization wished to rely on it, it was incumbent upon it to adduce such facts.

 The matter of whether the work complained of was performed by employees who were covered by the Agreement or whether it had been performed by employees not covered by the Agreement is related to the question of the identity of Claimants. It is difficult to see how one could say that the identity of the Claimants could be determined without further controversy. There are many instances when the defense of lack of specific named Cla cases, and this is one of them, when the defense is a sound one and is one which requires the Hoard to hold that the Claim must be barred. There is solid precedent requiring &ich a finding in the appropriate case and for the reasons discussed above this is such a case.

        FINDINGS: The Third Division of the Adjustment Hoard, 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 wit 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 claims 1 and 4 must be dismissed.


        That claims 2 and 3 are barred.


                  A W A R D


        Claims 1 and 4 dismissed. Claims 2 and 3 barred.


                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division

ATTEST: ~·~ y
 Executive Secretary

        Dated at Chicago, Illinois, this 30th day of September 1975.

          Labor Member's Dissent to Award 20821, Docket TD-20703


That the Majority in Award 20821 endorsed an erroneous decision becomes obvious even with a casual review of the Award and the record in Docket TD-20703.

 Claims 1 and 4 were dismissed because they were not initially filed within the time limit established in the Agreement. The Employes are the party making the claim and as the petitioner must point out how the Agreement was violated and the facts and circumstances or, in other words, identify what action of the Carrier caused or continues to cause the Agreement to be violated. In Claims 1 and 4 the proposed effective dates of the actions causing work to be taken away from the train dispatcher craft appear in the record. Dates are mentioned in Claims 1 and 4 but the record evidence clearly shows that the Agreement, violations resulting in claims occur when this work is performed each day rather than a single cause of action occurring on a single date. Many Awards have held that a single lapse in claim procedure does not cause a claim to be forever payable nor to. forever remove work from a class or craft of employes. One Award directly on this point is Award 10544 which states:

          "*-NN To hold otherwise would lead to absurd

. results--such as work properly belonging to a given
        craft being irdefini'~;ely lost to it because of

        failure to take timely action on an appeal, or a

        Carrier being required for the indefinite future

        to pay employes for work to which they are not

        contractually entitled and which is properly

        being performed by others. The purpose of the

        Time Limit Rule is to provide for the expeditious

        handling of claims, not to fasten upon the parties

        a system wherein a single lapse can produce con

        tinuing or repeated injustices thereafter."


The only way that it is possible to find Claims 1 and 4 are dismissable requires ignoring evidence presented in the record for several different dates clearly establishing a cortiruing performance of work by persons not covered by the Agreement, i.e. a continuing claim, and acceptance cf the contested dates of single a Labor Member's Dissent to Award 20821, Docket TD-20703 (Cont'd)

 As far fetched as the dismissal of Claims 1 and 4 appear to be, the holding that Claims 2 and 3 are barred is even worse. The errant route taken to create a procedural bar about the identity of the Claimants is so obvious in Award 20821 that extended further cent is hardly necessary. Suffice it to say neither the Organization nor the Carrier contended some Chief Train Dispatchers are not excepted from the Agreement while same are. The Majority elected to ignore the fact that only one Chief Train Dispatcher in each dispatching office is excepted from the Agreement and if additional Chief Train Dispatchers were employed, they would be covered by the Agreement. The record shows the work was not transferred to Chief Train Dispatchers (whether excepted from the term "train dispatcher" by the Agreement or not excepted) but was transferred to persons not covered by the train dispatchers Agreement. Chief Train Dispatcher position duties are defined and reserved in Article 1 (b) of the Agreements notwithstanding one Chief Train Dispatcher in each dispatching office being excepted, and duties or work was the subject matter in these claims.

 The method or route endorsed by the Majority to create the "identity of claimant" bar to Claims 2 and 3 are procedural. devices not supported by the record. Meaningful adjudication requires a study of the facts and evidence in the record. That Award 20821 is not based on the record in Docket TD-20703 can be found in Award 20821 itself. Award 20821 states "The Organization's response to Carrier's persistent objection to the claims on the ground that the absence of specific Claimants violates both the parties' Agreement and the National Agreement has been that 'specific names of claimants need not be specified, provided that they are readily ascertainable from carrier's records'." The only National Agreement mentioned anywhere in the record is the August 21, 1954 Agreement. The Carrier did not defend against this claim on the basis of this National Agreement nor did the Organization respond to this National Agreement as Award 20821 states. Both parties knew that the American Train Dispatchers Association is not a arty to the August 21, 1954 Agreement. The comment in Award 20821 regarding the National Agreement Augustt 21, 1954) shows without doubt the decision cannot be the result of a study of the facts and evidence in Docket TD-20703.

 For these specific errors as well as many others evident in Award 20821, I mist dissent.

                                      J. P. Erickson

                                      Labor Member