tender's position when automatic electric crossing gates are installed at a crossing formerly protected by one of his represented employes. The need for crossing protection at such a crossing still exists, in other words, work of the position still remains, it was performed prior to electric gate installation by the represented empoye. Has Petitioner ever taken such a position? Never, in so far as Carrier is aware. Petitioner has clearly recognized that his agreement provides no such protection to his represented employes. He has recognized that it is a managerial prerogative to determine,

(1) whether or not any crossing protection is necessary,

(2) whether or not this protection shall be by those employes whose equipment is to pass over the crossing,

(3) whether the assigned manual protection, if any, shall be allocated to the telegraphers located nearby, to an agentcrossing watchman, or to crossing tenders,

(4) the hours and days during which manual protection shall be provided at any specific crossing, and

(5) at any time to increase, decrease, or entirely discontinue manual crossing protection by his represented employes at any specific crossing,

all of the aforesaid managerial prerogatives being subject to properly constituted public authority. Proof of his recognition is evidenced by his appearance, or that of his representative, at many public hearings when Carrier is attempting to secure permission from a regulatory body to install automatic electric crossing gates, discontinue manual crossing protection at a crossing or decrease the hours of such manual protection, and his utter failure over the years, to ever interpose the slightest complaint or objection wJten Carrier exercised the aforesaid managerial prerogative.

SUMMARY: Carrier has shown above that there is absolutely no merit in the claim in this docket because,

(1) it is not supported by rule, and

(2) past practice clearly supports the Carrier.

The claim should be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: It appears that for many years public highway crossings have been protected as to train movements by one of several methods, to-wit, (1) by a member of the train crew, (2) manually by a crossing tender or by employes within the scope of the Telegraphers' agreement or (3) by automatic signals on crossing gates. It also appears, without challenge, that changes in the type of protection have been made from time to time at various crossings by approval of the State Public Service Commission and without protest from the Organization.

The Scope Rule of the Agreement provides that "the rules of this agreement apply to the following employes on payrolls of the Operating Department: Crossing Tenders." Nowhere in the agreement is there any provision requiring any specific crossings to be protected by a crossing tender nor establishing any criteria for determining which crossings should be so protected. Tn view of the undisputed past practice and the changes in type of protection afforded with approval of the Public Service Commission after a hearing, we think the Scope Rule, as it states, covers employes in the classification of crossing tender but does not require heir employment at any specific crossings.

The changes here involved were made upon approval of the Public Service Commission. If the Organization objects to the discontinuance of protection by crossing tenders, it has a right to object thereto before the Commission but such discontinuance under the circumstances here shown is not a violation of the agreement.

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

That the agreement was not violated.

AWARD