Attention is called to the fact neither that rule nor any other rule in the

The claims should be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: The facts are not in dispute. On Saturday, February 22, 1958, rest day of Claimant, at 8:32 A. M., the Conductor in charge of Extra 56, the Ann Arbor Turn, operating between Toledo, Ohio, and Ann Arbor, Michigan, did by the use of the telephone from Ferry Yard Office, Ann Arbor, transmit the following train message to the Train Dispatcher at Owosso, Michigan.

"An Arbor Turn arrived Ferry 8:32 A. M. with eleven loads and no empties, 887 actual and 947 adjusted tons; handled 15 loads, 1 empty 114 actual and 947 adjusted tons, leaving here in about 15 minutes."

The Claimant is the regularly assigned Telegrapher at Ferry (a yard office) hours 8:00 A. M. to 5:00 P. M., Monday through Friday.

It is the contention of the Claimant that the communication was one of record. The Dispatcher used the information to record on his train sheet. the arrival of the train at Ferry. It notified the Dispatcher the whereabouts of the train, so that they could be located immediately if necessary. Furthermore, if the Claimant was on duty he would have performed the work, as has been the practice in the past.

The Carrier contended that the Agreement does not give Telegraphers exclusive right to transmit commuunications of record by telephone. Also the Conductor was neither instructed nor requested to furnish the information by telephone to the Dispatcher.

The question in dispute is: Did the sending of this message by the Conductor violate the Telegraphers' Agreement?

The Board is of the opinion that since the Scope Rule does not specifically define or describe the work of a Telegrapher, but lists general classes of employes covered by this Agreement their work under the rule is determined by custom and practice. The Claimant contended in the record which we quote in support of their position:

"Without question, had Operator Lipka been on duty, he would have handled this work and it would have been his duty to do so . . . Historically, on this property, it has been recognized that employes covered by the Telegraphers' Agreement are exclusively entitled to perform work of handling communications of record . . .

. . . The information was a matter of record . . .

The Carrier does not deny the above statements in the record. Neither does the Carrier offer evidence that other classes of employes perform this work. Thus we must accept the contention of the Claimant that this work is performed by Telegraphers.

Hence we are of the opinion that messages concerning the operation of trains, that are of record, under the facts and circumstances herein, is properly Telegraphers' work.

The Awards of this Board have followed the general principle of law, that when the Agent is working on behalf of his master's business, the master is responsible for his acts. Thus the Conductors acts on behalf of the Carrier, when in performance of his duties, binds the Carrier.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 violated.

AWARD