by the motor-car operators for their own use from telegraph operators employed under the prevailing schedule of rules. In other words, the work of receiving the line-ups from train dispatchers, as well as the work of transmitting them to the motor-car operators, was performed by employes subject to the agreement. In essence, then, it is the contention of the employes that delivery of the line-ups to the motor-car operators may not properly be made by telephone comunication between the motor-car operators and telegraph operators located at points other than those where the motor-car operators are stationed. This contention, which, if upheld, might necessitate the assignment of telegraph operators at all points where line-ups are found to be necessary, is urged by the employes despite the provisions of Rule 58 of the Agreement and the long-established practice of the carrier in this connection.

"Rule 58, captioned TELEPHONES, which displaced an earlier rule captioned USING TELEPHONE, imposes in this regard express restrictions, explicitly stated, upon the carrier, but these restrictions are specifically made applicable only to the handling of train orders. No persuasive consideration has been presented for assuming, as contended by the employes, that this rule with regard to train orders was designed to restrict the rights of the employes, as established by the scope rule, rather than those of the carrier, by way of express definition of the scope rule in controversial situations, and that therefore the scope rule not only applies to such handling of line-ups as is here involved but is more comprehensive in its restrictions upon the carrier in connection with line-ups than it is in connection with train orders.

"In addition, it must be noted as of substantial significance that while the current Agreement dates from 1927, the present form of line-up from 1931, and the precise method of handling here involved at least from 1934, this is the first claim submitted by the employes questioning the propriety of the established practice. Although it must be conceded that the long-continued acquiescence of the employes cannot operate to alter the scope rule of the Agreement. such acquiescence is clearly relevant to a determination of the intent of the parties as to the applicability of the scope rule to the situation here in dispute.

"It must be concluded, therefore, that under the circumstances of this case-including the character and development of the relevant rules and the established practice of the carrier in the handling of line-ups-there has been no violation of the Agreement."

The "Opinion of Board" in Award No. 1145 has been upheld in practically all subsequent identical cases (of which the instant case is one) thru the years.

For the reasons cited in its Position, the Carrier respectfully requests that the instant claim now before your Board be DENIED.

(Exhibits not reproduced.)

OPINION OF BOARD: Here the section foreman at Winthrop, Maine, obtained line-ups by telephone from the telegrapher at Leeds Junction (about 9 miles distant) prior to the time when the telegrapher at Winthrop came on duty in the morning. Similarly, a section foreman and a signal maintainer at Gardiner, Maine, obtained line-ups by telephone from a telegrapher at Augusta (about 6.4 miles distant) prior to the time when the telegrapher at Gardiner came on duty in the morning. Thus the issue herein is whether the Telegrapher Agreement (the January 1, 1951, Agreement applies in this case) was violated when persons not covered by said Agreement received line-ups, at stations where a telegrapher was assigned but not on duty, from a telegrapher at adjacent stations.

As is true in regard to numerous other issues that have been considered by this Board, the Board's precedents evidence a diversity of results and an even wider diversity of Referee tongues on the same general issue stated hereinabove. None of the Board's decisions on this issue involve this Carrier, however, and the present Referee accordingly is free to follow any precedent or line of precedents that appears correct to him.

Under scope rules of the general character involved herein certain awards of this Board have placed special emphasis, in deciding cases involving the same issue that is before us, upon past practice on the particular property leading up to the time when the effective Agreement was entered into. Recent Award 6788 utilizes this approach and the reasoning of that award is persuasive upon the present Referee. Other awards which place spcial emphasis on the past practice element in deciding this same issue include Awards 1145, 5582, 6032, and 6607. Also see Awards 4265 and 4506.

A great deal of the discussion in the present case has concerned the matter of past practice. The Carrier has submitted concrete evidence that past practice on this property for about fifteen years (and possibly longer) prior to the present claim has permitted the obtaining of line-ups in the manner and under the circumstances involved herein. The Organization has submitted no evidence to refute the Carrier's evidence of such practice. It must be concluded that the evidence of record establishes the Carrier's contention regarding past practice.

All of the above considered, the claim will be denied.

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 Employe involved in this dispute are respectively Carrier and Employe 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 Carrier did not violate the Agreement.

AWARD