SPECIAL BOARD OF ADJUSTMENT NO. 117
ORDER Or RAILROAD TELEGRAPHERS
and
MISSOURI PACIFIC RAILROAD COMPANY
Claim of the General Committee of The Order of Railroad Telegraphers on the,
Missouri Pacific Railroad that:
1. Carrier violated terms
of
the AL;reements between the parties hereto
when on the 18th day of Januaiy 1952, acting unilaterally, it declared
abolished the positions of second and third shift CTC TelegrapherClerk at Dexter, Missouri, without in fact abolishing the work of such
positions;
2. Carrier further violated terms of the Agreement when on the same day,
acting unilaterally, it transferred work of such positions to Poplar
Bluff, Missouri, and required and permitted employes not covered by
Telegraphers' Agreement to perform such work;
3· Carrier shall be required to restore such work to scope of the Telegraphers' Agreement to be performed by employes covered thereunder
and entitled thereto according to the provisions of such agreement.
4. Employes wrongfully displaced or adversely affected by the violative
actions of Carrier shall be fully compensated, for all loss and expenses, if any, sustained as a result thereof; the names and amounts
to be determined by a joint check of Carrier's records.
OPINION OF BOARD: The Board being of unanimous opinion that a third party notice
issue is present here agreed to issue notice to the American Train
Dispatchers Association. Notice was given to this Organization under date of August 3,
1956, that the hearing in Docket No. 55 would be held at 10:00 a.m. on August 7, pro
vided the Dispatchers were agreeable to this date. This notice was given to R. 0.
Burke) General. Chairman, and 0. H. Brae se, President of the American Train Dispatchers
Association,
who
acknowledged receipt and acceptance of said notice. J. B. Tipler,
Vice President, and R. 0. Burke, General Chairman, appeared before the Board and pre
sented their position to the issue in dispute.
This claim, in essence, attacks the propriety of the respondent's action in
moving certain CTC work from Dexter, Missouri, to Poplar Bluff, Missouri, on the 18th
day of January; `1'952.
The Organization asserts that the action of the respondent here was of a
unilateral nature in violation of both the prime Telegraphers' Agreement and the
Memorandum and Appendix Agreement bearing date of February 1, 1939, when the action
by the respondent resulted in the abolishment of the second and third trick positions
that had, prior to the 18th day of January, 1952, existed at Dexter, Missouri. This
Board is requested to order the respondent to restore the work to the Scope Rule.of
the Telegraphers' Agreement and to make all employes affected whole for all loss and
expenses incurred.
The Organization asserts that the operation of the CTC panel, as and when
it existed at Dexter, Missouri, was assigned to and operated by employes coming within
the effective agreement and that when such work was assigned to employes covered by
the agreement such work then and there came under the scope of the agreement and could
not thereafter (negotiation excepted) be removed therefrom by any action of the
respondent.
- k
Award No.
55
Docket No.
55
The Organization further contended that the Carrier violated the terms of
the Memorandum of Agreement and the Appendix thereto, dated as shown above, when it
failed to confer with the Telegraphers and reach an agreement before making the change
at Dexter which resulted in the unjustified abolishment of the second and third trick
telegrapher positions at this point in contravention of the seniority provisions of
the-'effective agreement.
The respondent here takes the position that none of the effective rules of
the basic agreement indicate a violation here and points out that the Scope Rule of
the Telegraphers' Agreement does not contemplate the exclusive operation of CTv
equipment by the Telegraphers.
The respondent further asserted that under and by virtue of the Memorandum
of Agreement bearing date of February 1,
1939,
the Carrier was permitted, as here, to
assign the operation of OTC equipment to employes not covered by the Telegraphers'
Agreement (in this instance, Train Dispatchers).
The respondent pointed out that conference was held in connection with the
transfer of the work here involved, that is, from Dexter to Poplar Bluff, at a meeting held on January
5, 1950,
which was attended by representatives of the Carrier,
the Telegraphers and the Dispatchers, as was contemplated by the Agreement.
The respondent asserted that, as a result of this conference, it could
properly transfer the handling of the CTC work from Dexter to Poplar Bluff and assign
the same to the Dispatchers without any veto of such movement by the Telegraphers, as
they seek here to invoke.
.
It was asserted that the performance pf,CTC work is not the exclusive work
of any craft. or class and that, when the CTC.machines were operated at Dexter by the
Telegraphers, such operation of these machines simply amounted to the assignment of
such work bar the Carrier to the Telegraphers and could, in no manner, be interpreted
as conclusively contracting such work to them (the Telegraphers) to the end that such .
work was from such date forward the exclusive work of the Telegraphers.
The parties are in agreement as to the pertinent facts surrounding their
differences here. The installation of CTC equipment has been in progress on th
respondent's properties over a period of years. The number of such control installations have increased and the area of their effectiveness enlarged with the passipg of
time.
Immediately prior to the time in question, that is, January 18,
1952,
the
respondent maintained a CTC panel at Dexter, Missouri, the operation of which was
handled by Telegraphers. Effective as of this date, the operation of the signals'in "
the Dexter area wa6 transferred to a CTC panel at Poplar Bluff. This action resulted
in the abolishment (by the respondent) of second and third trick telegrapher positions
and the assignment to and: the operation of the OTC equipment at Poplar Bluff
by
`train
Dispatchers.
The operation of CTC equipment has long been a bone of contention in the
railroad industry. On this property, some of such equipment is presently operated by '
the Telegraphers, other equipment by the Dispatchers. The subject matter of this dispute was passed upon by the Third Division of the National Railroad Adjustment Board
Award No.
55
Docket No.
55
in Award
641,
which award in effect remanded the issue to the parties of interest for
conference and agreement, the parties of interest being the Carrier, the Telegraphers
and the Train Dispatchers. As a result of these conferences, a Memorandum of Agreement between the parties of interest was executed on February 1,
1939,
which resulted
in the allocation of CTC work to either the Telegraphers or the Dispatchers at installations located at Pacific, Leavenworth, Wagstaff, Cole Junction and Benton. Under
and by virtue of this agreement, the opej,ation of OTC equipment at these specified
locations became the work of either the. 'Train Dispatchers or the Telegraphers and can
properly be said to have been then and Were brought within the scope rules of their
respective agreements insofar as those specified installations were concerned.
The Appendix of the February 1,
1939
Agreement provided that all CTC control -
units then installed in train dispatchers' offices and then operated by train dispatchers may continue to be assigned to Train Dispatchers at such offices. The Appendix to this agreement further provided that no extension of existing facilities in
dispatchers' offices at points named therein, nor any subsequent assignment of dispatchers to operate CTC equipment, was to be made without prior conference between the
three parties of interest.
It thus appears that the parties of interest hereto, by virtue of this Agreement, have in effect admitted that the operation of CTC equipment is not considered as
being within the scope of the Agreements of either the Telegraphers or the Dispatchers.The allocation of this work between the two crafts at Pacific, Leavenworth: Wagstaff,
Cole Junction and Benton lends further credence to this actuality.
Ile cannot concur with the assertion of the respondent here that the conference held on January
5, 1950,
can properly be interpreted as complying with the Appendix to the Memorandum of Agreement dated February 1,
1939,
as pertaining to the transfer of the CTC control work from Dexter to Poplar Bluff, inasmuch as the evidence of
record shows that a conference with respect to this transfer of CTC control work from
Dexter to Poplar Bluff was held on March
26, 1952,
which was subsequent to, rather
than prior to, the actual transfer of the work (January 18,
1952)
as required by the
Agreement.
While the Telegraphers and the respondent here recognized the existence of
CTC work and negotiated job titles and wage rates to cover the performance of such
work, it cannot properly be said that the Scope Rule of the Agreement as it was
initially negotiated by the parties or as it presently reads can be interpreted as
placing the operation of CTC control systems under the scope of the. Telegraphers'
Agreement. The performance of such work by the Telegraphers comes to them by assignment; their right to perform such work exclusively after its initial assignment is not
contemplated by the Scope Rule. The same can properly be said of the Scope Rule of
the Dispatchers' Agreement.
In light of the above and foregoing, it is the opinion of the Board that
it (the Board) is in no position to hold that the work here involved is the exclusive
prerogative of either the Telegraphers or the Dispatchers. We are of the further
opinion that either the affirmation or declination of the claim with which we are
here concerned is beyond the authority of this Board since to do so would be to
accept primary jurisdiction of a jurisdictional dispute. This is beyond our authority.
We are of the opinion that this issue was properly disposed of in Award No.
616,
wherein it was held
"From the foregoing it is obvious that this Board is in no position to say
with that degree of certainty which should back its awards, that the work
here involved is the exclusive prerogative of either organization. It may
Award No.
55
Docket No.
55
"be that it is competent for either to perform it, but there is quite insufficient basis to reach a conclusion that it might be done by one to the exclusion of the other.
"Consequently, the case presents a real jurisdictional dispute, in that it
is rather over which organization should have the right to perform the work
as now performed, than as to which «oes have such right. Of such disputes
this Board has no jurisdiction.
"The case is accordingly remanded for conference between the three parties
in interest to adjust if possible, by agreement, failing which their proper
forum is the National Mediation. Board."
FINDINGS: The Special Board of Adjustment No. 117, 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 Board is without jurisdiction; and,
That the claim should be disposed of in accordance with the above Opinion.
AWARD
Claim remanded in accordance with the above Findings and Opinion.
SPECIAL BOARD OF ADJUSTMENT NO. 117
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St. Louis, Missouri
August
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