The regular Operator-Clerk, Jackson was off duty at the time the message was transmitted, having left at 4:00 P. M. Jackson's regular work schedule was from 7:00 A. M. Tuesday through Saturday. The above message was transmitted on Jackson's rest day.

The Organization contends that the transmission and reception of these messages by telephone is reserved to telegraphers under the Scope Rule of the Agreement and under Supplement 13 both of which are fully set forth in the record. Fuller and Jackson were Operator-Clerks represented by the Organization while the Ticket Clerks at Pulaski and Abingdon, Virginia, were represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes.

A notice of the pendency of this claim was mailed to the Brotherhood on February 9, 1962, and on February 13, 1962, the latter replied disclaiming any interest in the dispute before the Board.

The Scope Rule is general in character. It does not specifically and clearly define the work which is specifically reserved to the telegraphers. The "Claimants right to the work which they contend belonged exclusively to them must be resolved from a consideration of tradition, historical practice and custom; and on that issue the burden of proof rests on the employes" Award 6824 (Wenke). Also see Awards 4464 (Wenke), 4791 (Robertson), 7076 (Whiting), 9953 (La Driers) and 9552 (Bernstein).

Both parties recognize this principle because the record is replete with evidence to show the historical practice and custom. The Organization cites dispute settlements to support its position (R 8-15). Most of these concerned orders to stop trains to take on revenue passengers. Only one such settled claim involved an order sell space on a train (R 13). In each settlement the Carrier wrote that the claim is allowed without prejudice.

The Carrier has filed 25 affidavits stating that "it has always been the general practice for employes not covered by the Telegraphers' Agreement to also handle messages by use of telephones." Each affiant concludes by stating:

"According to my personal knowledge the handling of messages of record, or not of record, by telephone has never been the exclusive work of telegraphers on Norfolk and Western Railway" (R 47 through 71).

If these affidavits are false or incorrect the Organization should have countered them by affirmative and pertinent evidence. Instead they say only that: "These affidavits represent nothing more than ready compliance with the boss's wish" (R 75). This is not sufficienot to establish by a preponderance of evidence that by tradition, historical practice and custom the work belongs exclusively to the Telegraphers.

Furthermore, the Organization attempted in 1939 and in 1947 to enlarge the Scope Rule by covering conditions similar to the dispute now before the Board (R 24-29). Since these amendments were not adopted and the Scope Rule was not changed, the tradition, custom and practice heretofore established must remain. Award 7953 (Cluster).

The Organization argues that the real issue before this Board is whether the messages are "of record." In Award 1983 (Bakke) this Board said:

"It will be noted that the items of work became the property of the telegraphers under the scope rule that the items must be 'of record', which means that the conversations are important enough in the operation of the railroad to be made matters of record. The best example of this is in relation to transmission of train orders."

There is, however, no consistency in the Awards of this Board on what constitutes messages "of record." It will serve no useful purpose here to discuss and distinguish each of them. The facts and circumstances vary considerably in each case. In Award 9953 (La Driere) the Board held "that the fact that the substance of a telephone conversation is reduced to writing does not make it a communication of record."

The principle laid down by this Board in Award 6363 (McMahon) is applicable here. The Board said:

"The record shows ticket clerks held positions at Boulder and were members of the Clerks' Organization. Their duties, as designated by the position as 'Ticket Clerks', were primarily employed to sell tickets and perform other duties incidental to their work. They also were required to handle telephone communications concerning passenger reservations. Certainly it cannot be said this is work belonging to the Telegraphers."

Claimants have failed to establish by a preponderance of evidence that they are entitled to perform the work in question to the exclusion of others, either through custom, practice or tradition.

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 Carrier did not violate the Agreement.

AWARD