STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Railway, that:
EMPLOYES' STATEMENT OF FACTS: Claimant J. H. Walker is the regularly assigned agent-telegrapher at Greer, South Carolina. At the time the claim arose in July of 1958, his negotiated rate of pay was $2.4150 per hour. He had assigned hours of 8:00 A. M. to 5:00 P. M., excluding meal period, and his assigned workweek was Monday through Sunday, with Saturday and Sunday as assigned rest days.
Claimant J. E. Addington is the regularly assigned agent-telegrapher at Gaffney, South Carolina. His negotiated rate of pay for that position at the time the claim arose in July of 1958, was $2.4150 per hour. He had assigned hours of 8:00 A. M. to 5:00 P. M., excluding meal period, and his assigned workweek was Monday through Sunday, with Saturday and Sunday as rest days.
On Wednesday, July 2, 1958, at 6:27 P. M., Clerk Jackson, an employe under the Clerks' Agreement, performed the following work in transmitting the communication of record as follows:
The current agreement between the parties became effective on September 1, 1949. In the Section 6 Notice served on the carrier in 1947 (which was before the effective date of the agreement) and in 1958 (which was 9 years after the effective date of the agreement), the ORT requested that the carrier confer upon the telegraphers a monopoly on the handling of train orders, lineups, so-called reports of record and other communications. They obviously were seeking a right which they recognized employes of the telegraphers' class or craft did not have, either before or after the effective date of the current agreement. No such rules were ever negotiated by the parties. The ORT conceded in these Section 6 Notices that they do not have the right they are now claiming in this dispute. If such was true, a telegrapher would have to be assigned to every telephone on carrier's property.
Thus, it is evident that the claim now before the Board is not supported by the effective agreement, and that it is nothing more than an effort by the employes to obtain through the Adjustment Board what they failed to obtain in negotiations with the carrier as required by the Railway Labor Act. As a matter of fact, even the employes' proposals dealt with messages of record "in connection with train movement" and not to other communications. The Third Division has stated many times that its function and authority under the Railway Labor Act is to interpret the applicable rules of the agreements in effect between parties to disputes, not to abrogate, change or make rules for the parties.
The evidence of record discloses that there was no violation of the agreement, and that the work in question is not reserved to telegraphers. For the reasons set forth herein, carrier respectfully requests that the claim be denied in its entirety.
OPINION OF BOARD: The claim alleges a violation of the effective Agreement because clerks at Gaffney and Greer called the telegraph operator at Greenville and gave him messages addressed to the Yardmaster and chief dispatcher at Greenville requesting cars to be placed at the respective stations for peach loading.
An agent-telegrapher was employed at Gaffney and another one at Greer, the former 7:30 A. M. to 4:30 P. M., Monday through Friday; the latter 8:00 A. M. to 5:00 P. M., Monday through Friday. There is one clerk at each of the two locations, each assigned to an 8:00 A. M. to 5:00 P.M. schedule, Monday through Friday. One of the two messages in question was phoned from Greer at 6:27 P. M., the other from Gaffney at 11:15 P. M. by the respective clerks on Wednesday night, July 2, 1958, when both telegraphers were not on duty. 12705-10 360
1. Neither of the statements is supported by first-hand documentation or other proofs.
2. The Petitioner's statement is general, not representing itself as addressed to the practices on this system or division or at these locations. The Carrier's statement addresses itself to the practices at the locations and for the employes here involved.
3. In the course of the correspondence between Petitioner ana Carrier, which preceded the submission of this dispute to this Boars, the Carrier stated through its Assistant Director of Labor Relations: "Clerks Jackson and Cooksy also state that their functions during the 1958 peach shipping season were no different than they were in previous years."
The record shows also an allegation by the Carrier that in the specific circumstances under which these two messages were sent, the two clerks were acting under orders of the two agent-telegraphers. Although this statement is specifically made by the Carrier in two separate communications to the Petitioner (ORT Exhibit No. 5, Page 15 of Record, and ORT Exhibit No. 8, Page 17 of record), Petitioner does not meet this claim in either its correspondence with the Carrier or in its statements to us, maintaining complete silence on this subject.
Our evaluation of the foregoing is that the Petitioner has failed to meet its burden of showing, by convincing evidence, that under the circumstances here present, the work in question belonged exclusively to the Claimants by tradition, custom and practice.
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