NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION






PARTIES TO DISPUTE:


STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Railway that:


1. Carrier violated the Telegraphers' Agreement when on March 19, 1957, it required or permitted Conductor T. M. Garrett, to copy, record and deliver Train Order No. 96 addressed to Engine 2238, at Goodwin, Georgia, M. P. 626.3.


2. Carrier shall compensate extra telegrapher A. M. Harrison, or the senior idle extra telegrapher to be determined by a joint check of the Carrier's rcords, for one day's pay (8 hours) at the rate of $2.05 per hour, for the violation which occurred at Goodwin, Geogia on March 19, 1957.


EMPLOYES STATEMENT OF FACTS: Goodwin, Georgia is located at or near Mile Post 626.3. There are no positions under the Telegraphers' Agreement regularly assigned at this location.


On March 19, 1957, Conductor Garrett of Engine No. 2238 copied, recorded and delivered Train Order No. 96 addressed to C&E Engine 2238 at Goodwin. The train order was copied directly from the dispatcher by telephone. Train

Order No. 96 reads as follows:
 Form 21-A
 (For Use Only in CTC Territory)
 SOUTHERN RAILWAY SYSTEM
 Order NO. 96
 To (C&E, Train No.
 (C&E, Engine No. 2238, Goodwin, Ga. DateMarch 19, 1957

 Block signals between Goodwin and Foremost




JFA Chief Dispatcher T. M. Garrett, Condr. Conductor or Engineman


Made Complete 11:14 AM. MAIL THIS FORM TO CHIEF DISPATCHER WHEN FULFILLED



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collective bargaining. The Board has heretofore held that it would not take such action.









The Board, having heretofore recognized that it does not have 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.




Carrier has proven that there has not been any violation of the effective Telegraphers' Agreement. In addition, as evidenced by the ORT's unsuccessful attempt in negotiation to obtain for employes of the telegraphers' class or craft the right to work such as here involved, by the existence of an established practice over the years supporting Carrier's action and by Carrier's decisions in other cases which were accepted by the ORT without question, Carrier has effectively shown that the point here at issue has heretofore been conceded by the ORT.


The Board, being without authority under the law to establish new rules or modify existing rules, which is what is here demanded, cannot on the record do other than hold that there has not been any violation of the Agreement in evidence and make a denial award.


All evidence submitted in support of Carrier's position is known to employe representatives.


Carrier, not having seen the ORT's submission, reserves the right, after doing so, to present such additional evidence in argument as may be necessary.


(Exhibits not reproduced.)

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
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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 re spectively 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











Dated at Chicago, Illinois, this 29th day of January, 1964.