THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Railway, that:
EMPLOYES' STATEMENT OF FACTS: At Pioneer, Tennessee, until about 1930, the Carrier maintained a station. There was one position covered by the Telegraphers' Agreement with an assigned Agent-Telegrapher at this location. During the years when this position was in existence, the occupant thereof performed all the communication work in the handling of messages, orders and reports of record, as well as the other station work.
Due to excess amounts of water in the soil, slide conditions prevailed at the Pioneer tunnel. Carrier was well aware of these conditions and had men and equipment present to clear the tracks of sliding obstacles. These facts are not disputed by the Carrier that it knew of the slide condition before Extra 4220 was permitted to leave its terminal station. The Carrier with this information in mind made no effort to have a telegrapher present at Pioneer, Tennessee, on the arrival of Extra 4220 to copy the necessary order for its return to Lake City, Tennessee. Conductor McGhee of Extra 4220 copied train order No. 110 at Pioneer. The train order read as follows:
rates of pay, rules, or working conditions * ' *:' (Section 3, First (i) of the Railway Labor Act). The Board cannot sustain the claim here presented without disregarding the evidence presented, and the agreement between the parties and practices thereunder, and attempting to impose upon the Carrier conditions of employment and obligations with respect thereto not agreed upon between the parties in the normal process of collective bargaining as outlined in the Railway Labor Act. The Board has heretofore held that it would not take such action.
The Board, having heretofore recognized that it is without authority under the law to grant new rules or modify existing rules, as the ORT here demands, must, as the only alternative, make a denial award.
Carrier has proven that there has not been any violation of the effective Telegraphers' Agreement, as alleged, and, further, that the point at issue has heretofore been conceded by the ORT.
The Board, being without authority under the law to grant new rules or modify existing rules, as here demanded by the ORT, has no alternative but to hold that there has not been any violation of the effective Telegraphers' Agreement, and make a denial award.
OPINION OF BOARD: This case is the same in all material respects as in Docket No. TE-9988, Award No. 12150. We adopt the opinion therein as determinative of the issues in this case.
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
In accepting Carrier's decisions in the above referred to cases, which established precedents, the ORT recognized the interpretation placed upon the plain language of the agreement by Carrier.
The evidence presented can lead to but one conclusion, that the point here at issue has heretofore been conceded by the ORT.
The evidence presented herein proves without question that there has not been any violation of the effective Telegraphers' Agreement as alleged, and leads to the conclusion that the claim which the ORT here attempts to assert represents nothing more than a demand that the Adjustment Board grant employes of the telegraphers' class or craft a rule or working condition which it has heretofore been unable to obtain in negotiations, and thus change the terms of the Telegraphers' Agreement. That the Board does not have authority to grant such a rule, or change the effective agreement is evidenced by the fact that its authority is restricted to deciding " * * * disputes between an employe or group of employes and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning 12157-14 359