THIRD DIVISION
(Supplemental)
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
Rule 17 provides for the establishment and termination of seniority. It obviously does not support the claim.
In connection with the various rules referred to above, it will be noted they are all general rules and none deal in any particular with the subject in dispute. It will further be noted that there is no evidence of any kind that the Carrier has ever agreed in any way to utilize telegraphers in connection with work forming basis of this claim, and conclusive evidence that it has not will be found in Carrier's Exhibits E through L.
The facts in this claim readily establish that the telephone conversations at Bakersfield conveying information to Southern Pacific-Santa Fe agenttelegrapher at Edison in connection with diversions by an employe of Pacific Fruit Express Company in no way involved the provisions of the current agreement.
This claim is obviously invalid in its entirety; but even if it were a proper claim, the penalty allowable would be at straight time rate and not at the overtime rate claimed-see Awards 7094, 7222, 7239, 7242, and 7316, to cite but a few.
Carrier has conclusively shown herein the claim is totally lacking in merit and should be denied.
OPINION OF BOARD: An employe of the Pacific Fruit Express at Bakersfield California, telephoned the following message to the Agent-Telegrapher at Edison, California:
This telephone conversation took place on November 13, 1959. A similar conversation was had on November 18, 1959. That message was:
Pacific Fruit Express is jointly owned by this Carrier and the Union Pacific. It is operated as an independent entity; it has its own officers and employes; some of the employes are represented by various labor organizations that have agreements with the Pacific Fruit Express. That company employs no telegraphers and has no Agreement with The Order of Railroad Telegraphers. 12617-zs 857
Shippers, owners and consignees frequently call Pacific Fruit Express to divert cars in transit. For that purpose the company employs "diversion clerks" to handle the necessary work. Depending upon the circumstances in each case, these clerks communicate the requested diversion by regular mail, air mail, mailgram, airgram, railroad line wire, Western Union, telephone or messenger service.
Carrier maintains around-the-clock telegrapher positions at Bakersfield, California. This is found in the Agreement and in the record.
A diversion message either changes the destination of the car or changes the consignee. A copy of the message is kept at the point of origin, a record is made by the receiving agent, and the confirmation or the accomplishment of this information is sent to the party originally filing the diversion.
Such diversion messages are communications of record since they involve the movement of trains. As such, the transmitting of such messages is work which belongs to employes covered in the Telegraphers' Agreement. This having been established, we need to determine if the employes of Pacific Fruit Express are Agents of this Carrier or if such messages had in the past been sent by Carrier's telegraphers at Bakersfield.
Carrier contends that the messages in question were handled by employes of Pacific Fruit Express and not by Carrier's employes. In a letter dated April 11, 1960, Carrier's Superintendent wrote to Petitioner's General Chairman, in part, as follows:
Petitioner's General Chairman replied under date of April 18, 1960, in part, as follows:
Pacific Fruit Express is a distinct entity. It is a separate company with its own officers and employes. The mere fact that it is jointly owned by this Carrier and the Union Pacific does not alter its identity as a distinct and separate company. It is not per se the agent of the Carrier, nor is there any probative evidence in the record to establish such an agency relationship.
The Pacific Fruit Express is not a new company. It was in existence for many years prior to the dates when the instant claims arose. The record shows that Petitioner was aware of the relationship between the Carrier and the Pacific Fruit Express as far back as 1939. 12617-27 858
None of the messages were transmitted by employes of the Carrier. In the absence of any showing of agency, the only remaining issue is that of alleged past practice as set out in Petitioner's letter of April 18, 1960. The burden of proving the existence of such past practice is upon Petitioner. It has failed to meet such proof. There is no probative evidence in the record to show that by history, custom and tradition all such messages were sent exclusively by telegraphers employed by the Carrier and none by employes of the Pacific Fruit Express. On the contrary, the record shows, without contradiction, that employes of the Pacific Fruit Express have sent diversion messages for many years prior to the dates of the incidents which gave rise to the existing claims.
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
This claim is invalid for two obvious reasons. In the first place, the involved telephoning concerned the business and affairs of Pacific Fruit Express, was performed by the employes of that company and was therefore not work which Carrier could have offered to any of its employes; hence under our consistent decisions Carrier's employes had no right thereto, irrespective of past practices-Awards 12303-12179 (Kane), 11398 (Moore), 11002 (Boyd), 10932 (Miller), 10922 (Hall), 9580 (Johnson).
The claim is invalid for the additional reason that this record contains no proof indicating that handling of diversion messages is work reserved exclusively to Telegraphers. There is no basis for the statement in the award that such diversion messages are "communications of record" and that the transmission thereof is work which belongs to Telegraphers. The correct rule was stated by Referee Dolnick in Award 11707, where the Board ruled: 12617--28 859