Docket No. TE-12935 NATIONAL RAILROAD ADJUSTMENT BOARD THIRD DIVISION (Supplemental) John H. Dorsey, Referee PARTIES TO DISPUTE: TRANSPORTATION-COMMUNICATION EMPLOYES UNION (Formerly The Order of Railroad Telegraphers) SOUTHERN RAILWAY COMPANY STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Railway, that: 1. Carrier violated the Agreement when on the 16th day of June, 1960, it failed and refused to permit M. J. Jennings, second trick Clerk-Telegrapher, Bulls Gap, Tennessee, to deliver Train Order No. 703 addressed to the C&E Eng 4218, but instead required Mr. Jennings to leave said Train Order in bill box at the end of his tour of duty (10:00) P. M., which orders were later picked up by train service employes of said train. 2. Carrier shall compensate M. L. Jennings for two (2) hours and forty (40) minutes at one and one-half times pro rata hourly rate of the second shift Clerk-Telegrapher position, Bulls Gap. (Pro rata hourly rate $2.39). EMPLOYES' STATEMENT OF FACTS: Claimant M. L. Jennings was the assigned telegrapher on the second shift Clerk-Telegrapher position at Bulls Gap, Tennessee, on June 16, 1960. His assigned hours were 2:00 P. M. to 10:00 P. M. At 9:54 P. M. the train dispatcher transmitted by the use of telephone to Claimant Jennings, Train Order No. 703 which reads as follows: After Extra 4171 West arrives at Bulls Gap Eng 4218 run Extra Made Complete Time: 954 P.M. Jennings, OPR" The train addressed, namely Extra 4218 East, was not due to be called for service to leave Bulls Gap until 12:01 A. M., June 17. This was two hours and one minute after Claimant Jennings went off duty. Train dispatcher instructed Mr. Jennings to copy the train order and to leave the train order with the proper clearance card in the waybill box located outside the office so that Conductor of Extra 4218 East would obtain the order when he reported for duty. In accordance with his instructions Mr. Jennings prepared the proper clearance card and placed it with the train order in the waybill box as directed. No emergency was involved in this instance. Claim was made for M. L. Jennings for two hours and forty minutes at the time and one-half rate for the second shift Clerk-Telegrapher position at Bulls Gap. The pro rata hourly rate of the position was $2.39. The claim was appealed to the highest officer designated by the Carrier, and declined by him. The claim is now properly before your Board for adjudication. POSITION OF EMPLOYES: While all of the rules of the Agreement support the position of the Employes, the following rules are called to your particular attention: "Rule 10-Calls (a) Except as otherwise provided in these rules, employes called to perform work outside of established hours will be paid a minimum of two (2) hours and forty (40) minutes at time and one-half rate for two hours and forty minutes' work or less, additional time calculated on minute basis at time and one-half rate." "Rule 31-Handling Train Orders No employe other than covered by this agreement and train dispatchers will be permitted to handle train orders at telegraph or telephone offices where an operator is employed and is available or can be promptly located, except in emergency, in which case the operator will be so advised by the Chief Dispatcher and will be paid for the call. At offices where two or more shifts are worked, the operator whose tour of duty is nearest the time such orders were handled will be entitled to the call. NOTE: See letter of October 19, 1929 on page 42, relative to use of telephones by conductors." The Scope Rule of this Agreement reserves the work to the Telegraphers. By Rule 31 the specific work of handling train orders has been spelled out in great detail. No clearer statement of a reservation of work could be made than Rule 31 in which it is prohibited for any employe other than covered by this Agreement and train dispatchers to handle train orders at a telegraph or telephone office where an operator is employed and is available or can be promptly located. In this instance Claimant Jennings was on duty at the time the Carrier desired a train order to be handled. The Carrier knew that Claimant Jennings tour of duty was finished at 10:00 P. M. and that it would be impossible for him to complete the delivery of the train order which was part of the handling of the train order before he went off duty. There was no emergency in this situation, but the Carrier attempted by circumvention to deprive the telegraphers under this Agreement of the work of handling train orders at Bulls Gap by requiring Claimant Jennings to place the train order in a bill box at the end of his tour of duty. It is clear from the rule that the operator at the telegraph or telephone office is entitled to be paid a call payment. Rule 10 provides that a call payment under this Agreement is a minimum of two hours and forty minutes at time and one-half rate. ORT Exhibits Nos. 1 through 9, attached hereto, are copies of the correspondence exchanged in the handling of this claim on the property. It might be pointed out that Superintendent O'Brien did not question the factual situation as described in the original claim, and acknowledged that this particular train order was handled in this manner. See ORT Exhibit No. 2. In ORT Exhibit No. 3, District Chairman Thibeau refuted the statement of Superintendent O'Brien that the Carrier had been handling train orders in this manner on the Knoxville Division for many years. Furthermore, in ORT Exhibit No. 6, General Chairman Watson reaffirmed District Chairman Thibeau's statement that the Carrier had performed the work on the Knoxville Division in this manner for many years. In fact, in ORT Exhibit No. 7, it is clear that the Carrier abandons the question as to whether this method had been used in the past and relies its defense on the wording in Rule 31. However, it is pointed out that Rule 31 is clearly worded to provide for the handling of train orders, which includes handling train orders at telegraph and at telephone offices. It is obvious that the word handling has been interpreted by your Board to not only include the receiving, copying, but also the delivering of the train order to the parties addressed. In the instance at Bulls Gap, the claimant was required to place the train order in a waybill box before going off duty and was not required or permitted to deliver the train order to the train addressed. The Carrier admits that during the regular assigned hours of the claimant he performed the work of delivering the train order, as is now requested and claimed under this dispute. This method adopted by the Carrier of handling train orders at Bulls Gap is in all respects similar to methods that have been held to be violations of the Agreement under similar rules in awards before your Board. In Award 1166, your Board was presented with a situation where an operator was required to copy a train order and leave it, before going off duty, in a box. Your Board held it was responsible to believe that the Train Order Rule, fairly and reasonably interpreted, recognized the right of Telegraphers to actually deliver the train order in question, and sustained the claim. In Award 1680, involving placing train orders in a waybill box, your Board again reaffirmed its opinion that this was a violation of the Agreement. Again in Award 1879, you found that the waybill box method of evading the Telegraphers' Handling Train Order Rule was a violation of the Agreement. Award 3611, was again a situation where the train orders were copied by the telegrapher on duty and placed in a waybill box on the outside of the station building, and you again held it to be a violation of the Agreement. In Award 8657, your Board reviewed all the previous awards of your Division and on the basis of these previous awards again sustained the claim when the Carrier required or permitted the telegrapher to place the train orders in a waybill box from which train crews at a later time would pick them up when a telegrapher was not on duty. Ie is therefore clear from the awards previously rendered by your Board that you have recognized under a factual situation where the Carrier requires or permits the train order to be placed in a waybill box for delivery or by pick up by train crews that there has been a violation of the Train Order Rule and the employe who was deprived of the work is entitled to be paid the call payment authorized under the rule. The work belonged to the position and the employe who held the position was entitled to perform the work at Bulls Gap, Tennessee, on June 16, 1960. A sustaining award is requested. (Exhibits not reproduced.) CARRIER'S STATEMENT OF FACTS: Bulls Gap, Tenn., is located between Knoxville, Tenn., and Bristol, Tenn., on the main line of carrier's Knoxville Division. On June 16, 1960, the date involved in this dispute, Mr. M. L. Jennings, claimant, was the regular occupant of the second trick clerk-telegrapher position at Bulls Gap, with assigned hours of 2:00 P. M. to 10:00 P. M. The Bulls Gap-Asheville turn (with lead Diesel Unit 4218) was called for midnight at Bulls Gap. At 9:54 P. M. claimant copied the following train order from the dispatcher on duty at Knoxville: After Extra 4171 West arrives at Bulls Gap, Eng. 4218 run extra Bulls Gap to Leadvale Jct with right over second class trains. RSM Made Complete Time: 9:54 PM Jennings, OPR" The dispatcher instructed Claimant Jennings to place the train order and clearance card in the bill box, which is located just outside the station door, and to close the station at 10:00 P. M., the end of his tour of duty. Mr. Jennings complied with the dispatcher's instructions, and the train crew to whom the order was addressed picked up the clearance card and train order from the bill box when they came on duty at midnight. There was no intermediate handling involved. Claim was subsequently filed in behalf of Mr. M. L. Jennings for a minimum call payment of two hours and forty minutes at the time and one-half rate for June 16, 1960, alleging violation of Rules 1 and 31 of the effective Telegraphers' Agreement. The claim being entirely unsupported by the agreement, it was declined by the Division Superintendent in his letter to the District Chairman dated August 18, 1960, which reads, in part, as follows: "The facts brought out in your letter describing the method of handling this particular train are correct and has been in effect on the Knoxville Division for many, many years. Rule 31 was not violated in this instance since claimant handled the order in its entirety." On August 20, the District Chairman replied to the Superintendent, in part, as follows: "You stated in your letter that Mr. Jennings handled the train order in question in its entirety. I cannot agree with this since he did not deliver the order. Handling of train orders includes receiving copying and delivering, as was set forth in the claim. This will advise that your decision is not acceptable and will be appealed to the next officer of the Carrier to whom appeals may be directed." Thus, it is a matter of record that the District Chairman did not deny that the practice now complained of has been in effect on the Knoxville Division for many, many years. The claim was further progressed on appeal and was finally declined by the Assistant Director of Labor Relations' letter to the General Chairman of January 17, 1961, copy of which is attached as carrier's Exhibit "A". It was discussed by the parties in conference on March 23, 1961, at which time carrier reaffirmed its previous decision declining the claim. The agreement between carrier and its employes as represented, for purposes of the Railway Labor Act, by The Order of Railroad Telegraphers, revised, effective September 1, 1949, contains, among others, the following rules: "Rule 1-Scope (a) This agreement applies to all telegraphers, telegrapherclerks, telephone operators (except telephone switchboard operators), agent-telegraphers, agent-telephoners, towermen, levermen, block operators and staffmen, operators of mechanical telegraph machines, wire chiefs, assistant wire chiefs, or analogous positions hereafter established; also such station agents and assistant station agents and ticket agents as are listed herein. (b) The word 'employe' as used in these rules will apply to all the foregoing classes, and employes will be classified according to duties performed." "Rule 31-Handling Train Orders No employe other than covered by this agreement and train dispatchers will be permitted to handle train orders at telegraph or telephone offices where an operator is employed and is available or can be promptly located, except in emergency, in which case the operator will be so advised by the Chief Dispatcher and will be paid for the call. At offices where two or more shifts are worked, the operator whose tour of duty is nearest the time such orders were handled will be entitled to the call. NOTE: See letter of October 19, 1929 on page 42, relative to use of telephones by conductors." "Rule 44-Terms of Agreement This agreement supersedes and cancels all former agreements, but does not, except where rules are changed, alter former accepted and agreed to practices, working conditions or interpretations. |