NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TD-23758
Martin F. Scheinman, Referee
American Train Dispatchers Association
PARTIES TO DISPUTE:
(Boston and Maine Corporation, Debtor
STATEMENT OF CLAIM: (a) A violation of the current effective agreement between
the Boston and Maine Corporation (hereinafter referred to
as the "Carrier") and the American Train Dispatchers Association (hereinafter
referred to as the "Organization"), namely Article 4(d), when on Monday,
October 1,
1979,
the Carrier through it's representative, ASofO S. J. Gallant,
directed Extra Train Dispatcher Victor W. Salemmi to cover the 1500 to 2300
Hours position, Boston office-Fitchburg and New Hampshire Districts and paid said
Extra Train Dispatcher Victor W. Salemmi at a rate less than the existing trick
train dispatcher's rate.
(b) A further violation of the current effective agreement between
the Carrier and the Organization, namely, Article 5(b) as amended by Decision
TD-10 dated March
19,
1958 occurred when the Carrier refused to recognize the
date of October 1,
1979
as the established seniority date for Extra Train
Dispatcher Victor W. Salemmi.
The Carrier shall now:
(c) compensate Extra Train Dispatcher Victor W. Salemmi the difference
between the rate paid for October 1,
1979
and the existing trick train dispatcher's
rate; and,
(d) place the name Victor W. Salemmi on the Train Dispatcher's
roster with a seniority date of October 1,
1979.
OPINION OF BOARD: On the date this claim arose, Claimant, V. W. Salemmi
was regularly employed as a Towerman.
On October
1,-1979,
Claimant was posting as a trainee in the Train
Dispatcher's office at North Billerica, Massachusetts. At approximately 1830
hours Train Dispatcher Coughlin, who was working the second trick on the East
End Train Dispatcher's assignment, became ill and had to be taken home. Train
Dispatcher S. D. Hansbury, who was working the New Hampshire-Fitchburg Routes
Train Dispatcher assignment was sent to replace Coughlin. As a result, Claimant
was ordered by Assistant Superintendent of Operations Gallant, to replace Hansbury.
Claimant functioned on the New Hmmpshire-Fitchburg Routes assignment from about
1830 hours until 2330 hours, the end of the trick.
Award Number
24425
Page 2
Docket Number TD-23758
The Organization maintains that Claimant's work on the New HampshireFitchburg Routes constituted
to the Organization, Carrier violated Articles 4(d) and 5(b) of the Agreement
by failing to compensate Claimant for five hours pay at the train dispatcher rate
and also by failing to recognize Claimant's establishment of a seniority date of
October 1, 1979 as a train dispatcher. These articles state:
"Article 4(d) Extra Relief Service
Relief requirements of less than four days per week
may be performed by extra dispatchers who will be paid
the daily rate of each Dispatcher relieved."
"Article 5(b) Time Begins
Seniority as train dispatcher will date from the time
service as such is first performed as a train dispatcher.
This rule will not change the seniority date established
prior to the effective date of this agreement."
According to the Organization, Claimant was "transferred" to the
position of train dispatcher from 1830 hours to 2330 hours on October 1, 1979.
During that time, he performed all the duties of a train dispatcher. Thus,
the Organization argues that he was clearly entitled under Articles 4(d) and
5(b), to appropriate compensation and seniority date for filling the position
of train dispatcher on that date.
Carrier, on the other hand, disagrees that Claimant was "transferred"
to the position of train dispatcher on October 1, 1979. Rather, it argues that
Claimant was a "trainee" at that time, who was merely "posted" on the New
Hampshire-Fitchburg Route under the jurisdiction of Train Dispatcher Hansbury
and Assistant Superintendent Gallant.
Furthermore, Carrier contends that trainees cannot actually perform
service as a dispatcher until they pass an examination on the Rules for the
Government of the Operating Department. In fact, Claimant failed such an
exam on October 18, 1979, though he did pass another exam on October 25, 1979
and was assigned seniority standing on that date.
Finally, Carrier maintains that it has followed the same procedures
with respect to Train Dispatcher R. J. Palleschi, yet the Organization never
protested his seniority date. Thus, Carrier asks that the claim be denied.
Because this dispute involves the seniority standing of Claimant
Salemmi vis-a-vis Train Dispatcher Palleschi, the Board caused a "To All Concerned"
notice to be issued advising of the pendency of this dispute and scheduled a
date certain on which to hear objections from anyone who might have believed
that they had an interest in this dispute. No one came forward. Therefore, we
will dispose of this dispute on the basis of the record as presented by the
petitioner and Respondent.
The claim must be sustained. First, Carrier's contention that Claimant
was merely "posted" on the New Hampshire-Fitchburg Route is not properly before
this Board. It was not raised during the handling of this claim on the property.
Award Number 24425 Page 3
Docket Number TD-23758
As we have previously noted, "Issues and contentions not raised in the handling
on the property may not be raised for the first time before this Board." Award
22893. (See also Awards 17329, 20607, 21394, 2147).
Second, it is clear from the record that Claimant actually performed
the work of Train Dispatcher from 1830 hours to 2330 hours on October 1, 1979.
In fact, at the end of his tour, he transferred his assignment to the Train
Dispatcher who relieved him.
Articles 4(d) and 5(b) are clear and unambiguous. The key factor in
both is the performance of work as a dispatcher. Claimant in this case has met
that key factor. In fact, this is consistent with the handling which was accorded
Train Dispatcher Palleschi inasmuch as Palleschi was given his seniority date on
the first day he performed work as a Train Dispatcher - October 20, 1979.
FEMINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and
upon the whole record and all the evidence, finds and holds:
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 Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTtfE:VT BOARD
By Order of Third Division
ATTEST: Acting Executive Secretary
National Railroad Adjustment Board
/Rosemarie Breach - Administrative Assistant
Dated at (Chicago, Illinois, this 15th day of June 1983.