R




                  SPECIAL BOARD OF ADJUSTMENT N0. 310


                            The Order of Railroad Telegraphers and

                  The Pennsylvania Railroad Company


        STATEMENT OF CLAIM : "Claim of the Committee of The Order of Railroad

        Telegraphers, that Kalamazoo Block Station 'Z' is a seven (7) day position and the blanking of this position on Saturdays and Sundays since September 1, 1949, is a violation of Agreement, as the work has not been abolished and instead train orders are being handled at 'VINE' and 'DOCK' through other locations. Therefore, these positions shall be restored on Saturdays and Sundays and all employes caused loss in earnings shall be compensated accordingly, under provisions of Award No. 4042, Third Division, National Railroad Adjustment Board." (Fort Wayne Division Case No. 72 - System Docket No. 163)


        FINDING S:


      In the case before us Carrier, on September 1, 1949, closed "Z" Block Station at Kalamazoo on Saturdays and Sundays, and extended the block and assigned control of 'Dock' Block Limit Station on these days to the Block Operators at Vicksburg Block Station. At the time of its closing "Z" Block Station had operated 3 shifts on Saturday and on the second shift on Sunday. Originally it operated on all 3 shifts 7 days a week. First and third shifts on Sundays were eliminated.


      Effective with the adoption of the Forty Hour week September 1, 1949, Z Block Station arbitrarily closed on Saturdays and Sundays on all 3 shifts and it was placed on a 5 day basis, Monday through Friday. Organization's complaint here is that Carrier should have established relief assignments to cover these positions on Saturdays and Sundays.


      The Organization cites Regulation 5-G-1(f) which provides that "all possible regular relief assignments x x x will be established to do the work necessary on rest days of assignments in six (6) or seven (7) day service x x x."


      Carrier here relies on Regulation 5-G-1(c) which provides that "on positions the duties of which can reasonably be met in five (5) days, the days off will be Saturday and Sunday." Paragraphs (d) and (e) refer to situations "where x x x employees will be needed six days each week" and to "positions which are filled" seven days.


      Carrier then quotes from Referee Carter in this 40-hour week case, Docket TE-5513, Award 5467:

                                            SOA 31©

                                            Qw a


      "The 40-hour week Agreement does not invade the prerogative of management in determining the number of employees required, to operate the railroad. It deals solely with those in the employ of the Carrier and the manner in which they shall be assigned."


Also relied on by the Carrier are Awards 7653 and 7654 of James P. Carey, Jr.

 The claim before us is that "Kalamazoo Block Station "Z" is a seven day position and the blanking of this position on Saturdays and Sundays since September 1, 1949 is a violation of the Agreement x x."

 We think the Organization has failed to meet its burden of proving a violation. To the contrary, Carrier's action finds support in Regulations
 5-G-1(c), (d) and (e).
 AWARD:
 Claim denied.
 Signed this 10th day of April, 1961.
 Is/ E. A. Lynch
 E. A. Lynch, Chairman
 /s/ C. E. Alexander
 C. E. Alexander, Carrier Member R. J. Woodman, Employe Member
                                      R~.JD 9


                      DISSENT

No Board of Adjustment has the authority to modify or amend existing rules but that is what we find the end result to be based on the "Findings" and "Award" of the majority. The Third Division ruled in Award No. 5703:

        "* * * we cannot make a rule nor modify existing rules * * *. Renegotiation thereof in the manner provided by the Railway Labor Act is the proper.source of authority for that purpose."

Arbitration Award No. 153 awarded a train order rule, it did not amend the Scope Rule of the currently effective agreement extant between the parties. Yet here we have the majority making a finding and an award that has gone beyond the Arbitration Award. The majority has here actually modified and amended the Scope Rule.
 Arbitration Award No. 153 awarded a rule which would not require Train and Engine Service Employes to copy train orders, except in emergencies, at points where and during the hours when Block or Telegraph or Telephone Operators are scheduled to be on duty, or at block stations which have been closed or abolished since May 1, 1938, or at block limit stations which have been closed or abolished since May 1, 1938 or which may thereafter be established. The Scope Rule of the agreement contains the classifications: "Telegraphers, Telephone-Operators (except Telephone Switchboard Operators), Block Operators." The Arbitration Board awarded a train order rule as attested by the following:

'NATIONAL MEDIATION BOARD

ARBITRATION BOARD

Arbitration Case No. 153

Case No. A-3521


In the Matter Of:

 DISPUTE BETWEEN THE PENNSYLVANIA RAILROAD COMPANY AND ITS EMPLOYES REPRESENTED BY THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS, BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, BROTHERHOOD OF RAILROAD TRAINMEN, AND THE ORDER OF RAILROAD TELEGRAPHERS.
 i sGA,

        sin


    two ~1


                A14ARD OF BOARD OF ARBITRATION


Pursuant to an arbitration agreement entered into by the above named parties on March 28, 1951, in accordance with the provisions of the Railway Labor Act, the Board of Arbitration consisting of Winfield G. Salmonson, Carriernamed member, C. H. Keenan, Employe-named member, and David L. Cole, neutral arbitrator, who was designated Chairman, having duly heard the parties and considered their evidence and arguments, does hereby make its award as follows:

 "1. It declines to award the rule proposed by the Organization as set forth
 in Paragraph Fourth of the aforementioned arbitration agreement.

 2. It awards a rule in the language following, to become effective on February 15, 1952, and to continue in effect until it is changed or modified in accordance with the provisions of the Railway Labor Act, as amended:

 'Except in emergencies, Train and Engine Service Employes shall not be required to copy train orders at points where, and during the hours when Block or Telegraph or Telephone Operators are scheduled to be on duty, or at block stations which have been closed or abolished since May 1, 1938, or at block limit stations which have been established since May 1, 1938, or which may hereafter be established.

 (1) The emergencies referred to shall include only storms, washouts, tornadoes, obstructions to tracks, slides, accidents, casualties, wrecks, engine or equipment failures, hot boxes, or break-in-two's, provided such cause or causes would result in serious delay and were not anticipated by the train dispatcher when the train was at the last open block or telegraph station.

 (2) At block stations which have been closed on certain tricks or during certain hours continuously since May 1, 1938, the restrictions of this rule shall not apply on such tricks, or during such hours.

 (3) The train orders referred to in this rule are those of the type now designated as Form 19 Train Orders in their various forms, and as illustrated on pages 35 through 42 of the Carrier's Book of Rules, edition of September 25, 1949.

 (4) The restrictions of this rule shall not apply to temporary block stations which have been closed or abolished or which may hereafter be closed or abolished. Temporary block stations as referred to herein, are defined to be block stations opened for a temporary limited purpose only, such as the clearing or repairing of tracks, bridges or other facilities, construction projects, or the movement of some special purpose train or trains.'

                              BOARD OF ARBITRATION


                              /s/ David L. Cole,

                              Neutral Arbitrator and Chairman


                              /s/ Winfield G. Salmonson,

                              Carrier Arbitrator

                                      SBA '31D

                                      9


., 3 -
 December 12, 1951
 DISSENT BY BOARD MEMBER C. H. KEENAN

 I consider the award agreed to by the majority of the members of this Arbitration Board to be very improper and unjust to the involved employes; it seriously discriminates against them, and is not responsive to the evidence of record. Moreover, this award fails to require the correction of practices that violate the inherent fundamental principal of craft rights and representation as contemplated by the Railway Labor Act, as amended. Therefore, I decline to participate in the rendition of the award.

                          /s/ C. H. Keenan, Board Member."

As may be noted the rule, directed at Train and Engine Service Employes, is that they shall not be required to copy train orders . . . at block stations closed or abolished after May 1, 1938, or at block limit stations established after that date except in emergencies. An understanding, reached in 1938 between the parties, not only embraced the handling of train orders by Train and Engine Service Employes but all other block operator's work as well, such as blocking and reporting trains, handling switches and clearance cards, transmission and receiving messages, and all other related duties assigned and accruing to the block station positions at the time of abolishment. The Arbitration award did not alter or otherwise annul the Scope Rule or the Oral Understanding as to block operator's work being off limits to other employes if the office was one closed after May 1, 1938.
 The Arbitration award is supplemental to the Scope Rule and to the Oral Understanding of May 1, 1938, it is not a substitute thereof, hence toe here have an erroneous award.

                          /s/ Russell J. Woodman


Russell J. Woodman

Employe Member