Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28393
THIRD DIVISION Docket No. TD-27956
90-3-87-3-484
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM: "Claim of the American Train Dispatchers Association that:
(a) The Soo Line Railroad Company (hereinafter referred to as 'the
Carrier') violated the Agreement between Soo Line Railroad Company and its
Train Dispatchers Represented by the American Train Dispatchers Association,
effective March 20, 1961, as revised effective August 24, 1983, including
Rules 3(c) and 10(d), when the Carrier directed and required train dispatchers, including train disp
'the Claimant') on March 14, 1985 to issue a line up (train location report
for foremen and track car operators) covering territory outside of the dispatching territory of the
or the train dispatcher position which the Claimant had been instructed to
fill.
(b) The Carrier shall now be required to compensate the Claimant at
the rate of time and one-half for working off assignment on the claim date
shown above, less compensation allowed the Claimant for service performed by
the Claimant on the train dispatcher assignment assigned to the Claimant or
the train dispatcher position which the Claimant had been instructed to fill."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On various dates between March 14 and August 30, 1985, East Side
Train Dispatchers on Carrier's Paynesville Subdivison were instructed to issue
lineups for all the territory between Shoreham and Glenwood, some of which
between Paynesville and Shoreham is operated under Centralized Traffic Control
(CTC). Under terms of a Letter Agreement of March 11, 1985, between Carrier
and the Organization, the respective territories of the East Side and CTC had
been redefined as follows:
Form 1 Award No. 28393
Page 2 Docket No. TD-27956
90-3-87-3-484
"CENTRALIZED TRAFFIC CONTROL (C.T.C.)C.T.C. All Tricks
Monday through Friday C.T.C. Territory
Paynesville to Withrow and Cardigan Jct.
to Parkway Jct Plus Northfield Subdivision
Saturday and Sunday Dispatching Territory
Handled Mon. through Fri., Plus Paynesville,
Brooten, Bemidji, Danbury, New Richmond and
Barron Subdivision.
EAST SIDE East Side All Tricks Paynesville and New
Richmond (except for C.T.C. Territory) subs
plus Brooten, Bemidji, Barron and Danbury
Subdivisions."
In this Claim the Organization argues that by issuing instructions
which required the East Side Train Dispatchers to issue lineups concerning
movement on a portion of the CTC territory, Carrier violated Rules 3(c) and
10(d) of the Basic Agreement:
Rule 3(c)
"Assigned assistant and/or night chief dispatchers
and trick train dispatchers who are directed by the
management to perform service as trick train dispatcher outside of their regular assigned position
will be compensated at the rate of time and one-half
of the trick train dispatcher position filled. Penalty time under this agreement will not apply to
employes who obtain new assignments through the exercise of seniority, until initial service perform
new assignment, or when directed to perform service
as chief, assistant and/or night chief dispatcher."
Rule 10(d)
"Vacancies or new positions known to be for, or
authorized for, more than ninety (90) days' duration
will be considered regular assignments of a permanent
nature. Notice of such vacancy or new position shall
be posted in the office where existing for a period
of seventy-two (72) hours and assigned to the senior
qualified applicant regularly assigned in that office
making application. Positions left unfilled will
then be promptly bulletined to all train dispatchers
on the system for a period of ten (10) days and
assignment made to the senior qualified applicant
within ten (10) days from the close of the bulletin
provided, however, the bulletin may be closed and
assignment made immediately upon receipt of application from the senior train dispatcher on the
system. In the event no applications are received,
the senior extra dispatcher on the system will be
assigned thereto.
Form 1 Award No. 28393
Page 3 Docket No. TD-27956
90-3-87-3-484
A train dispatcher assigned to a vacancy or new
position under this Section (d), caused by a train
dispatcher being absent account of physical disa
bility shall revert to his former assignment when
such absent train dispatcher returns to service.
Notices and bulletins issued under the provisions
of this Rule 10 will show position, location, rest
days, hours of service and dispatching territory.
Applications will be made in duplicate and one copy
returned to applicant as acknowledged."
The Claim received final denial by Carrier's letter of October 16,
1985, reading in pertinent part as follows:
"According to the information I have received, it
is felt that the most safe and efficient operating
procedure requires that only one lineup be issued on
the Paynesville Subdivision. The east side dispatcher is responsible for issuing slow and cautionary
Subdivision. In order that he may accomplish this
function, it is necessary that he know when trains
are operated between MNSS Junction and Paynesville.
As you are aware, trains do not leave Shoreham, which
is within CTC territory, without clearance of the
east side dispatcher. The east side train dispatchers were not required to perform work outside of
their assigned dispatching territory, but merely
found it necessary to issue these lineups in order to
safely and efficiently accomplish the full responsibility of their assignment. The Claimants were no
required to perform service as trick train dispatchers, as you allege, outside of their regularly as
were necessary in conjunction with the responsibility
of their own assignment. It is the intent of Rule
3(c) to provide compensation at the time and one-half
rate to dispatchers who are removed from their
regular position at the direction of Management and
required to fill a trick train dispatcher assignment.
Such is certainly not the case with which we are here
concerned and the rule does not provide additional
compensation, as you are claiming, under these circumstances.
The March 11, 1985 Agreement merely identifies
territories as required by schedule rules. That
Agreement does not under any circumstances limit or
restrict necessary duties of the respective assignments.
Form 1 Award No. 28393
Page 4 Docket No. TD-27956
90-3-87-3-484
For these reasons, your Claim is clearly without
support of schedule rule and/or agreement and is
respectfully denied in its entirety."
Careful review of the record, with special attention to the Agreement
language of Rules 3(c) and 10(d), shows that Rule 3(c) is a Call Rule with no
application at all to the issuance of lineups within or without a territory
and the record is devoid of any showing whatsoever that Rule 10(d) was violated. Accordingly, there
claimed violation on this record and it must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest : (~~
Nancy ever - Executive Secretary
Dated at Chicago, Illinois, this 25th day of May 1990.
LABOR MEMBER'S DISSENT
AWARD NO. 28393
DOCKET TD-27956
Contrary to the Majority opinion in Award 28393, Rule
3(c) is a penalty rule, not simply a call rule. This is
clearly evident, wherein the rule itself provides for
penalty time.
Third Division Award No. 3963
"This is a pure penalty case. The claimant does not
claim that he was deprived of work. The complaint is that
the Carrier violated the Agreement and should be penalized
therefor... Of the utmost importance is strict adherence to
Agreements made in the processes of collective
bargaining;..."
Penalty pay was not only appropriate, but mandated when
the claimant was required to issue line ups on territory
outside of his regular assioned position. Specifically, the
area between Shoreham and Paynesville, which was the
assigned territory of another dispatcher.
The opinion expressed in Award 28393 collides "head on"
with the true meaning and intent of the Rule 3(cS, yet the
opinion is entirely void of explanatory reasoning.
Thus, this dissent is essential.
C
L. A. Parmelee
Labor Member