SPECIAL HOARD OF ADJUS'R4.'
N0. 525
AWARD
N0. 25
CASE N0. 25
ORGANIZATION FILE: GRAND DIV.: oRT 3650 CARRIERFILE:
R-1277 TE-1-62
EhIIPLOYEST STATEMENT OF CLAIM:
Carrier violated the terms of the parties, Agreement when it
allowed and used engineer on No. 2 to deliver Train Order No. 326 to
Extra 5202 West between Portland and Livesy, Colorado, on November 7,
1961.
Carrier shall, because of the violation set out in paragraph 1
hereof, compensate Telegrapher C. M. Barnes the equivalent of eight
(8) hours pay at the rate of position occupied.*
*Carrier contends that the original claim was for
eight (8) hours pay, prorata rate, for this
violation.
SPECIFIC FINDINGS:
The Organization claims that it is Telegrapher's right to deliver
train orders at blind sidings where no telegraphers are employed. Here,
the telegrapher at Canon City copies train order over the phone from
train dispatcher at Denver. The message was given to engineman on
Train 2 to deliver to a train upon a siding between Portland and Livesy.
In so doing, the Organization alleges the engineman on No. 2 was performing
the work of telegrapher in violation of Rule 21 of Telegraphers? Agreement. Rule _21-C-1, reads:
'°1. Train and engine service employes will not
· be required or permitted to transmit or receive
train orders, clearances, written messages,
or to block or renort trains by telephone
· or telegraph, except in emergency."
(Emphasis supplied).
0
SE3ti
5P-S-
-A.wD
aS
The Organization relied upon numerous settlements made upon
the property at the Superintendent - Local Chairman level. Carrier
attributes such settlements to a settlement of certain claims made by
the Manager of Personnel and General Chairman in a letter dated February
28, 1951, wherein it was stated, in part, as follows:
"It is our position that the handling of train
orders in care of another train to either a
station or point after telegrapher is off duty
or to a point where no telegrapher is employed
is contrary to the provisions of Rules 1 and
22 of the current Agreement. See Award, Third
Division 2087 (on D. & R. G. W.) also the following awards Third Division 86, 1096, 1167, 1170,
1304, 1456, 7489 also 5087 and 57.22.
The Manager of Personnel then stated in said settlement letter:
"As I understand it, the only reason why you con-
. tend that Rule -1 and Rule 21 of the current general
agreement were violated by the delivery of train
orders under provisions of Operating Rule 217 and
that a penalty payment for a ?call' is due because
of such alleged violation, is predicated upon findings in the awards rendered by the National Railroad Adjustment Board, Third Division, specifically
referred to in your letter.
"In my opinion the philosophy developed in the awards
referred to is unsound and certainly does not reflect the intent of the parties who originally negotiated and adopted Rule 1 and Rule 21 as they appear
in the current general agreement covering the class
of our employees who are represented by your organization.
"Nevertheless, because of the facts in this particular
case being somewhat similar to some of the findings
in the Adjustment Board awards to which you refer,
'this claim will be allowed.
"This settlement is made with the distinct understanding that future claims of the same kind must stand
upon their own merits and be subject to agreement
rules as they then exist and, to the extent that they
' may then have application, findings of the Adjustment
Board or whatever other tribunal may at that time have
to make such. findings, will. be considered in the light
of the then currant awards."
- 2 -
. ~- · ~ 5~3.~
teas - ~~ ~~
The cited Award 2087 which arose from this property concerned
the mailing of an order to a point where two telegraphers were employed
but were not on duty. This is not our case. Here, no telegrapher
was employed at Livesy. We believe this difference in fact to be of
controlling importance. Neither are we confronted with a case of transmitting or receiving train orders etc. by telephone or telegraph which
is the coverage afforded by Rule 21(C) relied upon by the Organization.
The transmitting and receiving of the train order by use of the telephone was done earlier by the dispatcher and the telegrapher in this
case. Therefore, we find that this paragraph is not applicable to the
situation at hand.
The broader term "handling," which could be construed to apply
to hand delivery of a train order, is used in Rule 21(A), reading:
"No employes other than covered by this contract
and train dispatchers will be permitted to handle
train orders at telegraph or telephone offices
where a telegrapher is employed and available or
can be promptly located, except in an emerpenc
in which case the tale ·a her will be paid for a
call.11( Emphasis supplied .
To give the rule the effect that is contended for by the Organization, we would be compelled to ignore that portion of the rule which
is underlined above. As drafted, the prohibition applies only to situations outlined in the underlined portion of the Rule, which is not our
^ase.
Award No. 6639 (Bakke) is not persuasive as he injects the
broader term "handling" into the consideration of Rule 21(C) which, as
we have pointed out, deals only with the limited act of transmitting or
receiving train orders, etc. by telephone or telegraph.
-3-
r
~ 56~ 5a~ - ~~ a5
The above reasoning finds support in recent Awards
No-9445
(Johnson),
101,42
(Gray),
10604
(Dolnick), and Award No. 13, Special
Board of Adjustment No.
506
(Telegraphers tfo.Pac.).
We incorporate the following from Award
6824
(Shake) in respect
to the alleged applicability of the Scope Rule:
"Since the Scope Rule of the effective Agreement is
general in character and does not undertake to enumerate the functions embraced therein, the Claimant's
right to work which they contend belonged exclusively
to them must be resolved from a consideration of tradition, historical practice and custom; and in that
issue the burden of proof rests upon the gnployes."
The settlements made on this property during the past dozen
years can not serve to reflect historical practice or to destroy
the practice reflected by Operating Rule 217 prior thereto in view
of the expressed condition under which the claims were paid.
' Claim denied.
SPECIAL BOARD OF ADJUSTMENT N0.
525
(Signed) J. Glenn Donaldson
J. Glenn Donaldson, Neutral Member
Denver, Colorado Chairman
ITarch
9, 1964
(Signed) R. K. Anthis
R. K. Anthis, Organization Member
(Signed) C. E. Baldridae
. C. E. Baldridge, Carrier Member