STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Delaware, Lackawanna & Western Railroad Company that:
EMPLOYES' STATEMENT OF FACTS: An Agreement by and between the parties, bearing an effective date of July 1, 1953, and referred to herein as the Telegraphers' Agreement, is in evidence; copies thereof are on file with the National Railroad Adjustment Board.
The Telegraphers' Agreement lists as a part thereof an agent-operator position at Bangor-rate of pay $1.914 per hour. Said position, generally if not always, is assigned S A. M. to 5 P. M. (lunch hour out) Monday through Friday except the seven specified holidays are not included in the work assignment. Morse telegraph in the Bangor area has been completely replaced by the telephone.
The train dispatcher's office (where the train order signal is operated) is located across the tracks and approximately three city blocks from the
~ nt on the Carrier's Bangor and Portland Branch, which until merged with ei D, L. & W. in 1949 was operated by the D. L. & W. Bangor is the operating headquarters for this entire branch and is controlled by a train dispatcher whose office is located there. Normal operations indicate that 9 local trains depart and return to Bangor daily, except Sundays. At other stations on this branch, where there are no dispatchers, train orders, emanating from Bangor, are andled by telegraphers. There is also at Bangor an agentoperator position, usually assigned 8 A. M. to 5 P. M., the incumbent of which position infrequently transmits and receives messages, and then only .those concerning his freight agency business. For approximately 30 years train dispatchers at Bangor, where train crews go on duty, have been performing the work complained of under specifications of the claim, except with respect to the copying of train orders as indicated below. Prior to July 1, 1953, the effective date of the controlling agreement, conductors on this branch copied train orders received by telephone from dispatchers, but since July 1, conductors no longer copy their train orders but receive them directly from the train dispatchers at Bangor who have issued and copied them. Because the operation of this branch line was conducted in a different manner from that of the D. L, & W., the rights of the telegraphers were not the same. For example, compare Awards 3114 and 390`1, with Award 4104.
The Organization in support of its claim cites Articles 1, 3 and 12 (a) which, in pertinent part, will be set forth below. For the purposes of discussion we will also set orth Article 3 of the November 1, 1947 Agreement which unlike Articles 1 and 12 (a) was revised by the 1953 Agreement.
"ARTICLE 12- CLASSIFICATION OF EMPLOYES,
NEW POSITIONS, ETC.
The Petitioner asserts .that all the work performed by the dispatchers falls within the scope of their agreement. They do not deny however, that operating practice on this branch line differed from that extant on the D. L. & W. proper and that the rights of telegraphers were not the same. We are not certain that they bring their claim under Article 3 (b), formerly a part of Article 3 of the 1947 agreement, or Article 3(c). They maintain the existence of an agent-operator position at Bangor but couch the terms of claim (b) in the penalty relief language of Article 3 (c) which refers only to handling train orders at locations where an employe under their agreement is not located.
The Carrier maintains that on this branch line, by virtue of years of acquiesced in practice and the express language of Article 3 (a), the work claimed to be violative of the agreement was never intended to be, nor in fact was, work exclusively reserved by the scope rule to telegraphers.
As we read the 1947 Article 3, except for the delayed effective date with reference to the Bangor and Portland Branches, and the 1953 Article 3 (a) and (b) we see no difference in substances ut merely a refinement of language.
Generally "handling train orders" means "copying and delivering." Where ordinarily performed by telegraphers it, by custom, tradition and practice, falls within the covers a of the scope rule. The same applies to copying "communications of record'. Such is not the case here; the telegraphers never performed these functions at Bangor and both old Article 3 and new Article 3 expressly state that "train dispatchers will be permitted to handle train orders." This work must be considered limited by the work traditionally performed by telegraphers at Bangor, this scope rule being a reservation of work rule. We cannot find that te practices complained of were abrogated by the 1953 agreement nor has the Organization met the burden of proof 8333-24 923
required in establishing that the work in question was exclusively reserved to telegraphers. The claim must be denied.
In conclusion it should be stated that this award is limited strictly to the facts and the particular properly herein involved, that of the Bangor and Portland Branch, and is not to be construed as impinging upon findings made in prior awards affecting the same parties, but reaching different conclusions from different factual situations.
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 respec tively 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