In view of the fact, clearly established hereinabove, that petitioner has been living with the very situation here complained of prior to and within the life of the current Agreement, including revisions and reprinting thereof, effective March 1, 1951, carrier submits, in the event the Division considers the within claim with favor (a conclusion with which carrier could not agree), reparation should likewise not be provided in the Division's FINDINGS in this instance.
Carrier asserts that it has conclusively established that the claim in this docket is entirely lacking in either merit or agreement support and therefore requests that if not dismissed it be denied.
OPINION OF BOARD: The record here shows that notice of the pendency of this dispute was served on the Brotherhood of Railway Clerks in accordance with the requirements of Section 3, First (j) of the Railway Labor Act. That Organization declined to participate in these proceedings. Accordingly, the Board may properly consider the dispute on the merits.
The relevant facts are that prior to February 11, 1957, train crews stopped at the telegraph office at Stockton, California, enroute to the yard, to take delivery of train orders from telegraphers there employed. The Yard Office is located about two miles from the telegraph office. On February 11, this method was changed in that thereafter the train orders were taken by messengers not covered by the Telegraphers' Agreement from the telegraph office to the yard office where they were given to the Yardmaster for final delivery to the train crews.
The Agreement in evidence contains the so-called standard train order rule reading as follows:
It is the Employes' position that Rule 29 (a) was violated by the aforesaid method of delivering train orders.
The issue of whether the words "to handle train orders" include the right of covered employes to deliver them is not new. In 1935, this Board held it was a violation of the Telegraphers' Agreement for a conductor to deliver train orders to a work train crew. (Award 86). Since that time 12852-21 C?V
the Board has repeatedly held that handling of train orders is work belonging exclusively to employes covered by the Telegraphers' Agreement. Moreover, we have held on more than one occasion that there must be actual delivery by telegraphers where the standard train order rule is effective. (Awards 1166, 1169, 1170, 1422, 1680, 1879, 2928, 3611, 3612, 4057, 5013, 9657, 9319, 10239, 11653).
Some of our awards, on the other hand, have held, in effect, that constructive delivery is proper under the rule. Thus in Award 8327, Referee McCoy found that it was permissible for a telegrapher to place a train order on the train register where it was picked up by the conductor to whom it was addressed. The Referee carefully distinguished that case from those where some employe other than a telegrapher "did some act of handling a train order . . " The decision there was squarely based upon a finding that "no human hand intervened between the telegrapher and the train crew to whom the order was addressed . " and that "no one but a telegraphex `handled' the train order." (Cf. Award 7343). Again in Award 9988, Referee Begley found, among other things that delivery of train order by pneumatic tube was no violation of the rules.
Notwithstanding the conflict in our Awards on this issue, where, as here, the standard train order rule is in effect, the weight of authority clearly supports the right of employes covered by the Telegraphers' Agreement in handling train orders to receive, copy, prepare and deliver them to the crews addressed. See Awards 1168, 1302, 1713, 1719, 5810, 6678, 7967, 12371,12372.
Evidence introduced by the Carrier at this level of appeal which purports to show a practice of messengering train orders by other than telegraphers on this property was not presented during the progress of the claim on the property. It may not, therefore, properly be considered under the Board's procedural rules. (Circular No. 1).
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