PARTIES TO DISPUTE:


STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Texas & Pacific Railway, that:

 1. The Carrier violated the Agreement between the parties on the dates and at the times herein below stated when it permitted or required members of train crews to receive, copy and handle train orders by the use of the radio telephone on trains between stations where no telegrapher is presently assigned:





















2. As a consequence of these violations the Carrier shall compensate the senior idle telegrapher, extra in preference, on the district involved, an amount equivalent to one day's pay at the straight
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    time minimum hourly rate, for each of the dates stipulated in Part 1 hereof.


EMPLOYES' STATEMENT OF FACTS: There is in full force and effect a collective bargaining Agreement bearing effective date of May 15, 1950, between the Texas & Pacific Railway Company and The Order of Railroad Telegraphers. Said agreement is by reference made a part hereof.


The dispute involves interpretation of the Agreement with respect to the handling, copying and delivering of train orders on trains on various dates and at various times by train service employes. The Statement of Claim names specific dates however, the Employes are reasonably certain that the claim does not include each and every violation which has occurred between the time of the first and last dates shown. Those listed are the violations which have been brought to the attention of the Organization's officers.


In the early part of 1952, or thereabouts, the Carrier completed the installation of radio telephone transmitting and receiving instruments on freight engines, in cabooses, and in some selected stations which, the employes were informed, were for the purpose of enabling the engineer and conductor to communicate with each other, and to permit in certain specific instances, communication between trains and stations. It was the definite understanding that it was not the purpose of the Carrier to use these radio telephones for the purpose of transmitting and receiving orders, messages, and/or reports of record.


In spite of this understanding, the Carrier in 1952, issued through its Division Superintendents the following General Orders:


        "THE TEXAS & PACIFIC RAILWAY COMPANY


              Office of Superintendent


                Western Division


            GENERAL ORDER NUMBER 44


                    Big Spring, June 25, 1952

                    572-06


"ALL CONCERNED:

 The use of radio communication in any manner by any employe to supersede the requirement of complying with any rule of the Uniform Code of Operating Rules, Supplements thereto, or Special Instructions Supplementing Uniform Code of Operating Rules, is prohibited.

    The use of radio communication to transmit train orders, or any part of contents of train orders, is prohibited except as follows:


      (1) Train dispatcher may transmit a train order by use of radio communication direct to an operator, or direct to a conductor or engineer as provided in Rule 206 (b).


      (2) Radio communication may be used by an operator to relay train orders direct to a conductor, an engineer or another operator as provided in Rule 206 (c).


                        /s/ W. C. Foster

                        Superintendent


    cc: LCP (2) RCP CFA WTF WFK MRB JGT ACL LRS JHW JAW RTS GWS RLR RLM JWM


    POST ALL GENERAL ORDER BOOKS"

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    agreements, to be handled by employes we represent and that they be permittd to perform it, and furthermore that positions be established on trains operating in C.T.C. territory and where, on trains, radio or other means of communication are used or may be used manned by employes covered by our agreement."


Could anything be any plainer? They say they want operators on all trains. Radios are standard equipment on our trains. They want operators on the trains or the radios removed therefrom. The Carrier's reply to their letter is attached as Exhibit B. In that letter we said "* * * which is not understood as a proposal to change the terms of existing agreement". And they have never yet transformed their "declaration of policy" into a request or proposal, formal or otherwise. They are making the same attempt here that they made in Award No. 6959. They are trying to get your Board to give them a rule, which is outside your legal authority, in preference to serving a valid notice under Section 6 of the Railway Labor Act and following the prescribed procedure thereunder. You have said in hundreds of awards, including Award No. 6959, that you will not assume the functions properly delegated to the National Mediation Board by the Railway Labor Act. We respectfully urge that you must not assume those functions here.


In Award No. 6959, we conclusively proved the past and present practice on this property. We proved it by seventy-odd statements from a crosssection of employes and officers of the Company. The Board referred thereto in its Findings in that award, and since it is a matter of record, we shall not burden your board with a repetition of it here.


    In summary, we feel that we have shown the following:


      1. The "claims" are not properly before your Board.


      2. There is no rule to support the Organization's position.


    3. The Organization's purpose is to induce your Board to write a rule into the agreement.


    4. The Organization's contention is specifically denied by Award No. 6959, a recent award on this property involving the same parties.


We respectfully submit that these alleged claims must be dismissed or denied.


It is armed that all data submitted herein in support of the Carrier's position has heretofore been presented to the Organization and is hereby made a part of the question in dispute.


    (Exhibits not reproduced.)


OPINION OF BOARD: The Record in this case does not contain sufficient factual data to enable the Division to make an intelligent award. Further, some of the statements of fact in the respective submissions are at variance with each other. Therefore, the Division has no recourse but to dismiss the Claim, without prejudice to the rights of either party.


FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


    That the parties waived hearing on this dispute; and


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;

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 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

    That the Claim should be dismissed in accordance with the Opinion.


                  AWARD


    Claim dismissed in accordance with Opinion and Findings.


            NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION


            ATTEST: A. Ivan Tummon

            Executive Secretary


Dated at Chicago, Illinois, this 19th day of November, 1957.