CONCLUSION

The carrier asserts that the claim in this docket is entirely lacking in either merit or agreement support; therefore, requests that said claim, if not dismissed, be denied.

All data herein submitted have been presented to the duly authorized representative of the employes and are made a part of the particular question in dispute.

(Exhibits not reproduced).

OPINION OF THE BOARD: The question herein is whether the Telegrapher Agreement was violated when employes not covered by said Agreement copied line-ups at stations where a telegrapher was assigned, but when he was not on duty, from telegraphers at another point. This issue was ruled upon recently by this Division in Award 7970; the present Referee participated with the Division in the rendition of said Award. Award 7970 placed special emphasis on the element of past practice in deciding the issue. In the present case a great deal of the discussion has concerned the matter of past practice, and here, as in Award 7970, past practice on the property governs the disposition of the case.

At the outset it must be emphasized that the practice which is relevant in this case is that of obtaining line-ups outside the assigned hours of the telegrapher.

Campo was a one-man station both before and after 1950, with the telegrapher regularly assigned to commence work at 9:00 A. M. Since 1950 Jacumba also has been a one-man station, and the telegrapher there also commences work at 9:00 A. M. Prior to May, 1950, Jacumba was a two or three-man station, with a telegrapher regularly assigned to work commencing at 6:00 A. M. and accordingly being available to handle early morning line-ups. The Organization's evidence showing that line-ups were thus secured from a telegrapher at Jacumba prior to May, 1950, does indicate a practice of using a telegrapher to handle line-ups when one is on his regular tour of duty, but such evidence throws no light upon the question of the practice on this property at times when no telegrapher is on duty. (See Employe Exhibit No. 2, which shows that prior to 1950 Jacumba was a 24-hour office, and that said office handled line-ups "exclusively 7 days a week for the motor car operators between Campo and Jacumba and Jacumba and El Centro".) The Organization has submitted no evidence of any practice of "calling" a telegrapher to handle line-ups at any station at times when the station was not open. On the other hand, the Carrier's evidence strongly supports the conclusion that practice for many years on this property has been as follows: Employes have obtained line-ups by telephone from other stations when either (1) no telegrapher was assigned at their own station, or (2) a telegrapher was assigned but was not on duty. (See Carrier's Exhibits "C", "D", and "E".)

The Carrier asserts that under established practice prior to May, 1950, motor car operators at Campo received their morning line-ups via telephone from the telegrapher at Jacumba. Even the aforementioned Employe Exhibit No. 2 seems to bear this out. The Organization's position in this case would have been greatly strengthened had the Organization submitted affidavits from telegraphers who had served at Campo showing that the practice there had been for the Carrier to "call" the telegrapher so that morning line-ups could be obtained through him; or the Organization might have submitted affidavits showing that employes at Campo had customarily obtained their early morning line-ups from the telegrapher at Campo. The absence of any such evidence leaves the weight of the evidence of Record herein in the Carrier's favor.

The Carrier also receives support from the fact that while the alleged violations commenced in 1950, the Organization took no exception thereto

That the parties waived hearing on this dispute; and

That the Carrier did not violate the Agreement.

AWARD