All this despite the fact that the Organization, being fully aware of the existence of the practice complained of has previously offered no protest until the instant dispute arose. The complete absence of a protest from the Organization is evidence of their long recognition of the right of section foremen and other motor car operators to secure train line-ups in connection with the performance of their work, through the use of booth telephones, without any violation of the Telegrapers' Schedule. That which the Organization seeks would require the Carrier to either reestablish offices of communication and assign telegraph and/or telephone employes at each of the respective stations in order that they might perform a few minutes work on the days it was necessary to secure a line-up for the section foreman or other motor car operators, or force the Carrier to require its section foremen and other motor car operators to perform their work without protection of a train line-up. The assignment of operators when there could not possibly exist more than a few minutes work per day is not only uneconomical but highly unreasonable. The necessity for section foremen and other motor car operators receiving the benefit of train line-ups in connection with their work needs no comment from the standpoint of safety.

Carrier submits that it has shown that there is no valid reason for a claim or cause for complaint in this dispute, but if there were, any claim for reparation retroactive to a date extending more than thirty (30) days back of the date of the claim is outlawed by the provisions of Section (i), Article V, of the Telegraphers' Schedule, quoted and applied to the facts of the case in the "Carrier's Statement of Facts."

OPINION OF BOARD: The scope rule of the agreement effective December 1, 1938 governs the employment and compensation of agent-telegraphers, agent-telephoners, telegraphers, telephone operators (except switchboard operators), and others.

When the stations were telegraph offices the line-ups were secured from the telegraphers. When the positions were reclassified as small non-telegraph the telephones were removed from the depots or station buildings and located in booths adjacent thereto and since that time the Carrier has required or permitted section foremen to obtain line-ups direct from the dispatcher over the booth telephones.

This work of receiving line-ups belonged to the position of telegrapher at the time of the reclassification. Although classified as small non-telegraph, the stations, because of this practice complained of by the Employes, were in fact agent elegrapher agencies and the transfer of this work covered by the scope rule to section foremen violated the agreement. Substantially identical claims of the Organization against this Carrier were sustained by Awards 1261 1284 and 1303. For other awards sustaining this opinion see 604, 851, 919, 941 1024, 1220 1224, 1261, 1268, 1281, 1282, 1283, 1284, 1535, 1552, 1553, 1671, and 1720.

The Board has given full consideration to Awards 42 255, 890, 1078, 1257, 1396 and 1397 cited in behalf of the Carrier and finds no difficulty in concluding that they are not in conflict with the result reached in this award.

The absence of a protest against this practice from the Organization for a period of 8 years is not sufficient to establish consent to the illegal practice by the Employes or a modification of the scope rule by acquiescence. See Awards 1720, 1671, 1282, 941, 919, 735, 604, and 571 in which substantially the same defenses were interposed as are made in the instant dispute and in each of said awards the claim of the Organization was sustained.

The claims with reference to Wells, Webber and Oak Hill, Kansas were first presented to the Carrier on September 7, 1940, and the claim as to Stratford, Texas was first presented to the Carrier on January 14, 1940.

Under the provisions of Article V (i) reparations will be limited from a period beginning 30 days prior to the dates the several claims were presented to the Carrier.

No claim for a call is sustained where the section foremen secured line-ups at a time when the agents were on duty.

Nor is a claim for a call sustained where a foreman secured line-ups through a telegraph operator. See Awards 1145, 1305, and 1320.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and 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 Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

AWARD