4010-14 86

8. THE USE OF THE TELEPHONE DOES NOT CONVERT A SWITCHTENDER TO A TELEGRAPH OR TELEPHONE OPERATOR.

The Third Division has held repeatedly that it is permissible for all classes of employes to use the telephone for purposes directly relating to their own basic duties.

On our property, the switchtenders at Cabin "D", who are represented by the B.R.T. under that organization schedule and as to whom there is no dispute, use the telephone regularly and frequently to keep advised of anticipated movements for which the switches must be lined up. The switchtenders In the station proper use the phone repeatedly to call either the Tower, or Cabin Clerks located adjacent to depot tracks, to ascertain what moves will next be made.

No contention is made that these other employee are not switchtenders because of such use of the telephone.

These men are switchtenders, performing switchtender duties, covered by the switchtender schedule, and paid in accordance therewith.

As switchtenders they came directly under the certification of the Mediation Board under date of December 11, 1945, Case R-1525, are represented by the Brotherhood of Railroad Trainmen and are Included in the schedule made with that organization under date of July 15, 1946, covering the entire class of awitchtenders.

The jobs have never been reclassified by proper authority, or at all, nor is there any ground for doing so.

Disputes relating to switchtenders are under the jurisdiction of the First Division, not the Third Division.

Any features running to the orders of the National Mediation Board are referable to that body.

The claim should be dismissed for lack of jurisdiction, and Is of no merit aside from the question of jurisdiction.

OPINION OF BOARD: The sole issue in this case is whether the employes named in the claim are communication men covered by the Telegraphers' Agreement or switchtenders covered by the Trainmen's Agreement. If they can be properly classed as Telegraphers the claim should be allowed for it is conceded that under the terms of the current Agreement between the Carrier and the Order of Railroad Telegraphers all employes represented by the latter are entitled to pay at the rate of time and one-half for work performed on holidays.

Historically, the events giving rise to this dispute can be stated thus: From 1936 to 1945, switchtenders were under the Telegraphers' Agreement. In August, 1945 the Brotherhood of Railway Trainmen notified the Mediation Board there was a representation dispute among the switcbtenders. On August 30, 1945, the Board notified all interested parties and the following November assigned a Mediator to handle the dispute. During conferences the Mediator, the Telegraphers' Organization, and the representative of the Trainmen apparently concluded there were five positions carried on the Carrier's payrolls as switchtenders whose primary duties were other than those of switchtenders, and the Mediation Board was notified accordingly. Just what agreement was reached after such conferences, which, so far as the record shows, were not participated in by the Carrier, is best reflected by portions of a letter written on December 4, 1945, by the then Vice President of ORT to the Mediation Board which reads as follows:

"It was agreed between the representatives of the Brotherhood of

Railroad Trainmen and The Order of Railroad Telegraphers that the

three positions at Cabin C are in fact Levermen positions; that two of the positions at Cabin E (now occupied by P. R. Campbell and A. Borros) are in fact positions of telephone operators; that these positions cannot be properly classified as awitchtenders and are not involved in this case. All other positions listed, with the exception of the relief day work on the five positions named above, are properly classified as awitchtender positions and are the positions over which the Brotherhood of Railroad Trainmen seeks representation.

The Order of Railroad Telegraphers hereby relinquishes representation over all positions of Switchtenders as listed on the Carrier's payrolls with the exception of the three positions at Cabin C which are in fact levermen positions and the two positions at Cabin E, which are in fact positions of telephone operators and the relief work on those five positions."

"The services of the National Mediation Board were invoked by the Brotherhood of Railroad Trainmen to investigate and determine who may represent awitchtenders employed by the Cincinnati Union Terminal Company, for the purpose of the Railway Labor Act, as provided by Section 2, Ninth, thereof.

At the time application was received these employes were represented by the Order of Railroad Telegraphers.

The Board assigned Mr. James M. Holaren, Mediator, to Investigate. During the course of the investigation, representative of the Order of Railroad Telegraphers addressed a letter to the Board advising as follows:

'The Order of Railroad Telegraphers hereby relinquishes representation over all positions of Switchtenders as listed on the Carrier's payrolls with the exception of the three positions at Cabin C which are in fact levermen positions and the two positions at Cabin E which are in fact positions of telephone operators and the relief work on those five positions.' r r r

On the basis of the investigation and check of representation authorizations the National Mediation Board hereby certifies that the Brotherhood of Railroad Trainmen has been duly designated and authorized to represent switchtenders employed by the Cincinnati Union Terminal Company, for the Purpose of the Railway Labor Act."

"This will acknowledge your letter of January 3, 1946, suggesting an amendment to Certification dated December 11, 1945, issued by the Board in Case R-1525, representation dispute among switchtenders of Cincinnati Union Terminal Company.

Since the quotation from your representative's letter of December 4, 1945, addressed to the Board, carries a clearly stated exception of the three positions at Cabin 'C' and the two positions at Cabin 'E', it does not appear that any interpretation should be necessary. While it is true that the Certification does not contain any acceptance of your proposals, the Board's files, including the report of the Media-

So far as the record shows, no response was made to Mr. Cole's letter by any of the parties receiving it and no question was thereafter raised by any one respecting the interpretation placed upon such order by the Board which made it until about September 3, 1946, when the workmen herein involved were advised in effect by the Carrier that they were classified by it as switchtenders working under the BofRT Agreement and not as communication men under the Telegraphers' contract.

About four months after the Mediation Board's certification, to be definite, on April 24, 1946, the Carrier entered into the existing contract with the ORT whereby it was agreed, as heretofore indicated, that all employes represented by that Organization and covered by its terms were to be paid time and one-half for work on holidays. It was not until July 15, 1946, that the Carrier entered into its present contract with the BofRT, the terms of which make no provision for extra pay on holidays. Hence the real reason for this dispute.

It is of importance to note the record discloses the Carrier apparently recognized the two positions involved were covered by the Telegraphers' Agreement. In any event, it is charged by the Organization and not denied that it paid the occupants of such positions under and in accordance with the provisions of that Agreement up to and until shortly after the date of the execution of the BofRT contract.

Conceding, as the Carrier contends, that the two Organizations had no authority to reclassify positions by private understanding or without negotiation and agreement, the Mediation Board possessed the power to classify them for representation purposes. That, in our opinion, is exactly what it did in its certification of December 11, 1945. True enough, its order was no paragon of clarity but that its certification did not include five positions, two of which are here involved, is the reasonable inference to be gleaned from its terms. This is quite clearly indicated by the quoted portion of the Organization's letter appearing therein. That such was the Board's intention is definitely established by its Secretary's letter heretofore quoted. Under such circumstances and in view of all the other facts disclosed by the record, we are satisfied the BofRT has never been authorized to represent the two operator positions in question and that they have never been taken out from under the coverage of the Telegraphers' Agreement. Even if they had been, it is not too certain it would follow that they would now be covered by the Trainmen's contract. At all times since receipt of the copy of Secretary Cole's letter, the Carrier knew the Mediation Board, the Telegraphers and the Trainmen considered these positions as belonging to the Telegraphers. From about January 16, 1946, until shortly after July 15 of that same year it acquiesced in their views in that respect. It went further than that. It paid the occupants of such positions in accordance therewith. Acquiescence and action of the character to which we have referred can result in a binding obligation even in the absence of an express contract.

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