'But it was really apparent that the use of the telephone was so general that every use of the telephone was not contemplated or intended as telegraphers work. It was thereupon determined that employes whose duties require the transmitting or receiving of messages, orders, or reports of record by telephone in lieu of telegraph constitutes the telephone work reserved exclusively to telegraphers Award 1983: "

SCOPE RULE

"Interpretation and application of the Scope Rule determines the case on its merits. The critical question is:

Did Employes, by tradition, custom and practice on this property, perform the work to the exclusion of others?"

Then, in order to find that Award 10356 was "palpably erroneous", the Referee said that the referee in that award failed to apply "the above Test". It would seem reasonable that a Referee, in setting forth a "test" or announcement of a hard and fast principle of construction, would also give some citation of authority or reasoning to support the "test".

It is assumed that the Referee thought that he did so in citing four awards. It will be noted, however, that three of the cited awards were rendered subsequent to Award 10356. Referee Schedler in Award 10356 could not have had the benefit of the three later awards. The other award (9953) was duly cited to and urged upon Referee Schedler in the panel discussion of that case. Instead of relying upon bare numbers, the Referee should have given the reader some clue as to where, in the Referee's opinions, in the cited awards, his "test" was to be found. More especially is this true, when his self-announced criteria was to be used as a basis for disagreement with an award of a distinguished referee of long experience. As was stated recently by Referee Hall in Award 11897:

"It has been the practice of this Board to follow a precedent once it has been established unless it is subsequently found to be palpably erroneous. By this, we do not mean that we must follow blindly precedent awards; still, if there is to be a departure from or the rejection of a prior award on the property and between the same parties, the reason or reasons for such departure should be set out clearly in the Opinion."

Let us now review the awards, alleged by the Referee, to support his "test".

Award 9953 was written by Judge LaDriere. The opinion states:

"As to whether the message was a communication of record, it is well to remember that the use of the telephone is not reserved exclusively to telegraphers or any other craft. Award 5182-Boyd, 6703-Donaldson, 9343-Begley and the fact that the substance of a

telephone conversation is reduced to writing does not make it a communication of record. Awards 4265-Shake, 5660-Wyckoff. There is nothing in our record here which shows that the message was ever written. There is no contention here that the Conductor's use of the phone was in lieu of telegraph service formerly performed by an employe and there was no telegraph-operator at Mishawaka.

Under the circumstances and in view of the above, it is our belief that the message was not a communication of record and the claim should be denied. See also Award 5181-Boyd, 5660-Wyckoff, Awards 15, 16, 58 of SBA 117 and Award 58 of SBA 305 and 6363McMahon and others."

"The Scope Rule of the Telegraphers Agreement does not purport to specify or describe the work encompassed within it. It sets forth the class of positions to which it is applicable. The traditional and customary work of those positions, generally speaking, constitutes the work falling within the Agreement. * * * It cannot be disputed that the classes specified deal largely with communication service. Historically, communication service on the railroads was carrier on largely by telegraph. * * * The advent of the telephone * * * and other progressive methods of communication, has gradually reduced the work of the Morse code operator. This Board has sought to follow the communication work of the Morse code operator into the advanced methods of communication and preserve for him the work which traditionally belonged to him.

In the case before us, we are concerned only with the use of the telephone. * * * This situation undoubtedly accounts for the inclusion of "Telephone Operators (except switchboard operators)" in the Scope Rule. But it was readily apparent that the use of the telephone was so general that every use of the telephone was not contemplated or intended as telegraphers' work. It was thereupon determined that employes whose duties require the transmitting or receiving of messages, orders or reports of record by telephone in lieu of telegraph constitutes the telephone work reserved exclusively to telegraphers. Award 1983."

"There is abundant holding that given a Scope Rule which lists positions instead of delineating the work to be done thereunder, resort should be had to tradition, historical practice and custom. Award 5133-Coffey, Award 4919-Boyd, Award 6032-Whiting, Award 7970-Elkouri, and many others.

In arriving at a conclusion, we have carefully considered all the elements present-including the interesting information furnished by Carrier in the record as to the development of the handling of lineups over a great period of years, the attempts of the Organization to amend the agreement so as to obtain a better position from which to deal, and other matters in the case, particularly the great weight of the Awards which favor the Organization, and it is our opinion that we should adhere to the position that the sending or receiving of lineups under the circumstances herein has been and is the work of telegraphers. Award 4516-Carter; 5181, 5182-Boyd, 8183-Smith, 6588-Rader, 4772-Stone, and numerous others."

Thus, it is clear that the prime issue in Award 9953 was whether the telephone conversation constituted a communication, within the class exclusively reserved to Telegraphers' under the Scope Rule. The Referee, found as a fact, that it was not within such category and denied the claim. In Award 9951, he found that the messages, there involved, were within the class and sustained the claim.

In Award 9952, there was no question as to whether the line-ups were within the class. The question was whether such communications were reserved to Telegraphers' under the Scope Rule of the Agreement. The Referee found in favor of the Organization.

Award 9953 does not support the "test" announced by the Referee in the instant case.

The next award, cited, in date order, is Award 10425. This dispute involved the handling of two messages concerning reservations of sleeping car space on passenger trains. Referee Dolnick cited Award 9953, then said:

"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."'

It is clear that the primary question in Award 10425, as in Award 9953, was whether the messages were within the class exclusively reserved to Telegraphers' under the Scope Rule. The Referee found they were not.

In Award 10918, the issue was whether telephoning certain train information to operator at adjacent telegraph station, by clerical employe was violative of Scope Rule. The Referee found, as a fact:

"Formerly the messages, were transmitted directly to the train dispatcher. Beginning in 1952, at the request of the Organization, the messages when not handled by the Telegrapher were transmitted to near-by Telegraphers. This claim was initiated in February 1956:'

"Nevertheless, it is urged that Award 10356 which involved the same parties as here is controlling. But an examination of the record in that case shows that that claim was based on a trainman telephoning the dispatcher an "in the clear" report. That is not the basis of the claim here. We believe that Award 7825 parallels the situation here and should be given great weight"

"There is no disagreement with the Organization's contention that teletype machine operators and printers are covered by the Scope Rule and that clerks may not replace telegraphers when such automatic machines are installed. Awards 9988 (Begley), 10192 (Begley) and 864 (DeVane). In the case now before this Board, clerks did not replace telegraphers. The Carrier had no Agreement with the Organization covering telegraphers at Houston. Award 4516 (Carter) cited by the Organization is not to the point and does not deal with the question here involved."

"It may also be noted that in Award 10367, cited by the Organization, the Telegrapher's claim was sustained because of a consistent pattern of Carrier settlements which, the Board found, warranted the conclusion that `practice, custom and tradition has been established on this property to allow the telegrapher at the adjacent station a call where the regular morning lineups are copied by an Employe . . . direct from a dispatcher . . .' But, as noted above, in the case at hand there is no evidence or proof of an established practice or consistent pattern which would support Petitioner's claim." (Emphasis ours.)

In the first paragraph of the Opinion, in Award 10367, it is stated:

"This particular case is limited, however, to the copying and handling of train lineups by a Gang Foreman or an Employe under his supervision at point where no telegraph service Employes are employed."

"We believe from our examination of the record that practice, custom and tradition has been established on this property to allow the telegrapher at the adjacent station a call where the regular morn-

ing lineups are copied by an Employe not covered by the Telegraphers' Agreement direct from a dispatcher while at a point where no telegraph service Employe is employed."

It is interesting to note that Award 10367, cited in Award 11592, involved the same parties, and the same Agreement as in the instant case. On the other hand, Award 11592 involved dispute between Telegraphers' and Clinchfield Railroad. Further, it must be noted that Referee McDermott, in Award 11367, said:

"we have given particular attention to Award 9952 and 8329 cited by the Organization. We do not believe that on this property under the circumstances herein this decision is at variance with the aforementioned awards."

We have heretofore discussed Award 9952. Award 8329 involved the handling of a message. The dispute was between the same parties and involved the same Agreement Rule that was before the Board in the instant case. In this Award (8329) Referee McCoy said:

"The Carrier contends that to sustain this claim would overthrow a forty-year practice. The evidence does not support this contention. The Organization cited a number of claims which had been paid on somewhat similar facts, and one claim that had been paid on identical facts.

Since we find that the message communicated by the signal maintainer was of that class, the communication of which is reserved to telegraphers under the Scope Rule, the claim must be sustained."

CONCLUSION

As stated at the beginning of this dissent, the Referee is possessed of an "awesome power", when he can, without giving logical reasons, strike down the claims of the Claimants in Dockets TE-10217, 10218, 10219 and 10220. Under the law, as construed by the Supreme Court of the United States,- the Claimants are forever barred from recovering the small sums involved in these particular claims. The awards are, the Court holds, as a matter of law, final and binding, insofar as they dispose of the particular monetary claims.

With one exception (in Docket TE-10220), the parties to the instant dispute recognized that the issues in Docket TE-8456 (Award 10356), were the same. It is not unlikely that both parties felt that the same decision would be rendered in these cases as in the earlier case. Had the Referee chosen to follow the direct precedent of Award 10356, and sustained the claims, then the Carrier would have had an option to accept the decision or refuse to comply with the award or awards. In the latter event, the Organization and the Claimants, would have been left to the remedy provided in 45 USCA Section 153(p), The Supreme Court has saida that this remedy is exclusive..

Brotherhood of Locomotive Engineers, et al v. Louisville & Nashville (10 L ed 2d 172)

Award 10356 was rendered on February 16, 1962. The Board fixed April 16, 1962, as the date of the order for compliance by Carrier. The award required the payment of money. The Carrier had the option of recognizing the legal validity of the award or refusing to comply therewith, thus forcing a review by appropriate federal court. It is assumed that the officers of Carrier, including its legal department, made a complete evaluation of the award, in the light of the record presented to the Adjustment Board and pertinent court decisions. Such evaluation, as to legal probity, undoubtedly included a careful evaluation of prior awards of this Division. After such evaluation, in due course, the Carrier officers charged with making such decision, found it proper to fully comply with the provisions of Award 10356. Substantial payments were made, to employes entitled to receive same, under the provisions of the award.

An anomaly is thus created, that a Referee of this Division has rendered an award, finding that a prior award is "palpably erroneous", when in fact, the Carrier, itself, acting through its duly authorized officers, has decided that the prior award (10356) was legally enforceable. An award certainly is not "palpably erroneous" when one of the parties, having the right, as a matter of law, to force federal court review, pays substantial amounts in full settlement of same. In the case referred to in Footnote 3, the Court held that the Organization could not utilize the strike weapon to enforce an award of the Adjustment Board.

In view of the foregoing, it is clear that Awards 11882, 11883, 11884 and 11885 are erroneous. They have merely served to deprive the Claimants of compensation contractually due them. Conceding the inexperience of the Referee, and the mass of material with which he had to cope, it is still not understandable why the awards were proposed or adopted. A sense of impartial caution should, it seems, impel the new referee to accept direct precedents. Other ad hoc referees, without previous experience with this Board, regularly do so. Indeed, to fail in this regard, is to endanger the .efficacy of the Board's decisions.

LABOR MEMBER