Rear Dallas car is

NW 45671 mdse agent

T&P 18029 zinc Bartlesville, 210 MKT

ART 28069 juice Safeway Store

PFE 94188 same

WFEX 65722 same

PFE 95115 same

PFE 47684 same

CBQ 33681 Coffee Dwight Edwards

GATX 51795 XT Swift

NATX 4240 SB oil Garland, MKT

SHPX 22365 same

GATX 68931 same

NYC 71081 chair Startford Furn

GATX 69552 XT Milit Kans MKT

ART 27802 bans Standard Frt and Vegt Co

NBC 19198 bans Goodman Prod Co

IC 50082 bans Amer Prod Co

NBC 16055 bans Texas Prod Co

T&P 17387 zinc Bartlesville, MKT

T&P 17344 same

T&P 17673 same

T&P 18125 same

T&P 17838 same

T&P 18154 same

T&P 17508 same

T&P 18135 same

T&P 17581 same

T&P 17671 same

T&P 18056 same

T&P 17117 same

T&P 40091 same

T&P 1718 XEB 210

T&P 30231 shingles 246 Fsco

MoP 33141 same

S P 83218 same

T&P 32118 same

CBQ 26570 Wall board Buell Lbr Go

DIC 355 ice Pure Carbonic Co

"The record discloses that the telegraphers have always been permitted to utilize part of their working day to perform clerical duties. We think that right must necessarily continue because it is hard to believe that all telegraphers can be continuously kept busy performing only telegraphic duties. Likewise it appears clerks have always made use of various means of communication to transmit or receive information or messages in conjunction with that incident to their clerical work. Certainly that privilege or right should continue even though the method of communication used for that purpose have changed, because otherwise clerks will be seriously handicapped in the performance of their duties." (Emphasis added).

And truer words were never spoken. We hasten to again point out here that the information received by the clerks is information they need incident to their other duties. The information is used by them in compiling switch lists and other similar details. Now, let us see what the respective Committees did with that portion of the Emergency Board's Report. Article VIII of the Agreement of August 21, 1954, emanating from the Emergency Board's Report reads as follows:

"This proposal is disposed of with the understanding that present rules and practices are undisturbed." (Emphasis added)

Petitioner can't 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 indeed, the very moment, said Article was adopted. Much more could be said, but what more need be said?

We have not asserted a third party interest here, because it appears to us that Article VIII above, is positive in its application, and provides that the practice be continued. Petitioner, as well as the Clerks are parties to that rule.

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

(Exhibits not reproduced.)

OPINION OF BOARD: The basic issue here is whether the Carrier violated their Agreement with the telegraphers when it permitted 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 for 31 years. for clerks to take consists from clerks at Mineola Yard and Lancaster Yard over the phone. Such has also been the long established practice at the East Dallas Yard and the East Yard Fort Worth. The Organization, however, contends that these exhibits cannot be considered because they were not part of the record made on 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 hearing dates prior to the original submission, do not meet the requirements of Circular No. I 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 submission 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