letter from Senior Asst. Bridge and Building Supervisor Arthur Hefte, dated December 30, 1954 (Exhibit "E"); letter from Bridge and Building Foreman F. G. Williams, dated December 22, 1954 (Exhibit "F"); letter from Extra Gang Foreman Dale B. Herren, dated December 6, 1954 (Exhibit "G") and letter from Assistant Bridge and Building Supervisor H. F. Clouette, Jr., dated December 16, 1954 (Exhibit "H").
The Telegraphers' Agreement was rewritten August 1, 1945 and reprinted with revisions on September 1, 1951, but no exception was taken to the outstanding instructions and to the practice of handling lineups on carrier's property. Obviously, if any change were desired by the petitioner, the matter was one which should have been handled through the medium of negotiations. The fact that no rule of the agreement supports the claim now made and the further fact that the practice has been in effect for at least thirteen years during which time there were two changes in the agreement, most certainly evidences petitioner's acquiescence in that practice.
In view of what has been shown supra, carrier asserts that the claim for a call on March 1, 2, 3, 4, and 7, 1955, in behalf of Agent-telegrapher C. A. McGuire, as listed in Section 2(a), Employes' Statement of Claim, and claim as presented in Section 2(c) of Employes' Statement of Claim, are not properly before this Board as they were not handled on carrier's property in accordance with the Railway Labor Act and Rules of the National Railroad Adjustment Board and, therefore, this portion of the claim should be dismissed.
The carrier asserts that the other portions of the claims in this docket are entirely lacking in either merit or agreement support, and therefore requests that said claims 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.
OPINION OF BOARD: The facts giving rise to this claim are not in dispute and may be summarized as follows. Prior to May 1 1954, and since the establishment of Tiburon as an agency station, three shifts of telegraphers were maintained constituting around-the-clock service at this point. The employes occupying these positions performed all the telegraphic communication service originating at or destined to Tiburon including the handling of train orders, lineup orders for track motor cars operating out of this station, messages and reports.
The third trick telegrapher position, 11:59 P. M. to 7:59 A. M., was abolished on the above date, was re-established on October 2, and again abolished on October 30, 1954. During the period when this position was abolished there was no telegraph service at this station during those hours. Tiburon is the headquarters of a section gang which goes on duty at 7 A. M. On the dates covered in the claim the Section Foreman copied and handled a lineup order obtained, by the use of a telephone located at Tiburon, from the telegrapher at San Rafael, 10.5 miles to the north and the nearest open office, prior to the time that the first shift agent-telegrapher was assigned to begin his tour of duty. No attempt was made by the Carrier or the Section Foreman to call the claimants or any occupant of the Agent-telegrapher position at Tiburon.
The pertinent sections of the rules of the controlling agreement, effective August 1, 1945 (reprinted September 1, 1951, including revisions) are set forth below: 8314-26 665
The Organization also invokes Rule 30 as amended, Handling Train Orders. This rule has no application here for we find as a fact that the alleged violation concerns the handling of a "lineup of trains", not a "train order.
The question herein is whether the Telegraphers' Agreement was violated when employes not covered by said Agreement copy lineups at a station where a Telegrapher was assigned, but when he was not on duty, from telegraphers at another point.
As is true in regards to numerous other issues that have been considered by this Board, the Board's precedents evidence a diversity of results on the general issue stated above. None of the numerous awards submitted involved this Carrier and the petitioner organization, and for that reason the present Referee feels 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 have placed special emphasis, in deciding cases involving the same issue that 8314-27 666
is before us, upon past practice on the same property leading up to the time when the effective Agreement was entered into. Award 6788 utilizes this approach and the reasoning of that award is particularly persuasive upon the present Referee. Also see Awards 7970 and 8141.
The Carrier has submitted evidence that as early as July 25, 1942, Circular No. 128 (Carrier's Exhibit A), setting forth instructions in connection with the operation of track cars, was in effect. They were reissued May 4, 1944 August 2 1944, November 5, 1946, January 14, 1948, and October 26, 1950. Also, these instructions have been listed in each issue of Resume of Circular Notices and Instructions, the last issue being September 1, 1953. Specific reference is made here to Rue 1 thereof:
In addition, petitioners' ex parts submission sets forth a typical track motor car order Form C. S. 2639, in effect since 1947, on which appears the following instruction:
We are cognizant of the fact that neither the Carrier nor the petitioner can take solace from past practice at the station in question for there was none. The past practice relevant in this case is that with respect to obtaining lineups outside the assigned hours of the telegrapher.
This record contains no evidence submitted by the petitioner to refute the Carrier's contention regarding past practice either prior to August 1, 1945 or September 1, 1951 the date of reprinting with revisions of the 1945 Agreement. In short, the petitioner has failed to establish that the functions performed by the Section Foremen, under the factual situation here present, was treated as work belonging to the telegraphers at the time the effective Agreement was executed.
In view of the above considerations it must be concluded that the claim is without merit and will be denied.
FINDINGS: The Third Division of the Adjustment Board, 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