SECOND. While it does appear that the message in question was reduced to writing, it does not appear that there was any requirement that it was to be considered a message or report of record. The mere fact that somebody reduces the substance of a telephone call to writing does not make it a message of record.

x s s * x

In view of the foregoing considerations we are unable to conclude that the transmission or the receipt of this message was the exclusive work of telegraphers. We reach this conclusion independently of Awards 5181 and 5182."

The foregoing, Carrier submits, successfully refutes petitioner's contentions that the work forming basis of this claim is allocated to telegraphers under the Scope Rule of the current agreement. Therefore, since that work cannot be shown to be allocated to telegraphers under the Scope Rule of the current agreement, Rules 2, 16 and 17 of that Agreement to which petitioner refers in support of its contentions are in no way involved.

The facts in this claim readily establish that the telephone conversation between the section foreman at Harney and roadmaster's clerk as Winnemucca on the date of this claim did not involve or contravene any provision of the current agreement. The conversation was purely an exchange of information pertinent to the normal functioning of the Maintenance of Way and Structures Department and in no manner involved the craft here making claim.

CONCLUSION

Carrier has conclusively shown herein the claim is unwarranted and totally lacking in merit, and if not dismissed for lack of proper notice to other interested parties, Carrier asks that it be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: On December 2, 1957, a Section Foreman at Harney, Nevada, telephoned the Roadmaster at Winnemucca, Nevada, and advised him as follows:

This is not a message of record. It does not involve the operation or movement of trains or the safety of persons and property. What constitutes a communication of record depends upon the facts and circumstances in each case. See Award 12116.

Petitioner alleges that Carrier violated Rule 1-Scope. This Rule does not define nor describe the work of the employes covered by the Agreement. In the absence of such definition or description, Petitioner has the burden to prove that such a message belongs to Telegraphers by tradition, custom or practice. Petitioner admits this to be the principle established by this Division of the Board when it says in its Ex Parts Submission:

"Scope Rules of this Organization purposely do not spell out, in so many words, the work which is embraced within the terms of the Agreement, but it is an accepted and well established fact that they do cover work. They are within the category of Scope Rules `general in character' where tradition, historical practice and custom define the work covered; hence they cover all of the work traditionally, historically and customarily performed generally by the classes of employes therein specified. Awards 3003, 3004, 3999, 4516, 5038, 5133. They identify the employes by classes, who by tradition, historical practice and custom possess the contractual right to perform all of the work encompassed by the Agreement, an integral and unquestioned part of which is telegraphic communications work with all of its many phases."

This, however, is a mere assertion. It is not probative evidence. There is no evidence in the record which established the fact that such a message is by tradition, custom or practice work which belongs exclusively to Telegraphers under the Agreement. Petitioner has failed to meet the burden of proof.

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 Carrier did not violate the Agreement.

AWARD