Petitioner can not deny that this practice existed long before the above Article VIII became effective, and they cannot deny that it was in effect at the very time, the very moment, said article was adopted. Much more could be said, but what more need be said?

The Carrier respectfully urges that the claim should be dismissed for the reasons set forth in items 1, 2, 3 and 4 above. In the alternative, it must be denied for the reasons set forth in items 5, 6, 7 and 8 above.

It is affirmed 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.

OPINION OF BOARD: The basic issue here is whether the Carrier violates their Agreement with the telegraphers when it permits clerks to handle consists (or as the Carrier maintains switching lists) at points where no telegrapher is assigned.

While the decisions of the Board on this question are not in harmony the later decisions of the Board hold that where there are Agreement rules such as we have involved here past practice is the deciding factor. As this Board held in Award No. 8207 (McCoy):

"The Scope Rule merely lists the positions covered, and names among others telegraphers and telephone operators. Under such a general rule the decisions of the Board are unanimous that the question whether exclusive jurisdiction is conferred depends upon tradition, historical practice and custom."

Exhibits attached to Carrier's initial Ex Parts Submission received by this Board on March 5, 1956 show that it has been the practice since 1941 for the clerks at Mineola Yards to call consists of trains over the message telephone to the clerks at the Hollywood Yard. The Organization, however, contends that these exhibits cannot be considered because they were not part of the record made in handling the dispute on the property and are, therefore, in violation of Circular No. 1, Rules of Procedure of this Division.

This Board has had occasion to deal with this problem before. In Award No. 9552 this Board held:

"The same exhibits, which were presented for the first time at the oral argument, although bearing dates prior to the original submission, do not meet the requirements of Circular No. 1 for ex parte submissions that carrier set forth `all relevant, argumentative facts, including all documentary evidence . : The exhibits were submitted in support of a contention made earlier, i. e. in the Carrier's Ex Parte presentation. They should have been presented then. Their later offering was untimely."

Under these holdings documentary evidence attached to the original Bubmission can be considered by the Board. While there are decisions of the Board to the contrary the decisions cited seemed based on better reasoning inasmuch

as there are usually no formal hearings with a right of cross examination on the property and no formal records except, of course in disciplinary cases. Furthermore, the Organization did not raise this issue in subsequent submissions to the Board. It was first raised at panel argument. Under these circumstances the Organization cannot claim surprise and, in any event, has waived this point.

The procedural points raised by the Carrier are deemed to be without merit.

In view of past practice and custom the claim is 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 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

That the Agreement was not violated.

AWARD