Finally, even though the monetary claim must necessarily fail because Petitioner cannot show that operators have exclusive right to this work, Carrier has nevertheless shown that even if operators had exclusive right to this work (1) the 12:30 A.M. to 8:30 A.M. operator not the claimant could only be aggrieved (2) the call rule is not applicable for the reason that claimant would first have to be called before the pay provisions of the rule can become applicable (3) even if claimant was called under the call rule, paragraph (b) and not (a) would control.

OPINION OF BOARD: Petitioner claims Carrier violated the Agree-

ment between the parties when it permitted Section Foreman Benson, an employee not covered by the Telegraphers' Agreement, to copy a line-up of train movements over the telephone direct from the train dispatcher before Telephoner-Clerk Skelley reported for duty.

There has been considerable litigation before this Board over the claim that the Scope Rule granted ORT exclusive jurisdiction over line-ups. The Awards do not follow a consistent line and there is no clear cut policy which applies. Each party, therefore, offered such authority as supported its point of view.

Petitioner relied on Award 604 (Swacker) in which the Board said "* * * work of a class covered by the Agreement belongs to the employes upon whose behalf it was made and cannot be delegated to others without violating the Agreement." It cited an impressive list of awards which referred to Award 604 favorably: 1983 (Bakke); 1605 (Blake); 1535, 1562, 1563 (Bushnell); 5079, 5081 (Coffey); 896, 941, 942 (DeVane); 2934, 4018 (Douglass); 1671 (Garrison); 11908 (Hall); 1261, 1268, 1303 (Hilliard); 1552, 1553 (McHaney); 11156 (McMahon); 3363 (Messmore); 3671 (Miller); 4009 (Parker); 1820 (Rudolph); 1145 (Sharfman); 1713, 1720, 1752 (Stiger); 1393 (Stone); 603, 645, 919 (Swacker); 1281, 1283, 1284 (Tipton); 5639, 6607 (Wyckoff).

Carrier met this argument with a long line of awards beginning with Award 6824 (Shake) which holds that where the Scope Rule "is general in character and does not enumerate the functions embraced therein, the Claimant's right to the work which they contend belonged exclusively to them must be resolved from a consideration of tradition, historical practice and custom; and on that issue the burden of proof rests upon the employes." 10970 (McMullen); 10442 (Gray); 10604, 10515, 10425, 11708 (Dolnick); 9953 (LaDiere); 11812, 11813 thru 11819 (Christian); 11592 (Stark); 10918 (Boyd); 10366 (McGrath); 10525 (Corey); 10700, 11720 (Hall); 10823 (Sheridan); 10951 (Ray); 11343 (Miller); 11895, 12150 thru 12171 (O'Gallagher); 12078 thru 85 (Kane); 12097, 12356 (Dorsey); 12383, 12385 (Engelstein).

The Petitioner, itself, cites with approval the comment on line-up practice by the Emergency Board in National Mediation Board Case H-4336, on Carrier's Proposal No. 25 which sought a rule "to recognize the right of the Carrier to require other than telegraph service employes to handle train orders, motor-car line-ups, or other communications." The Emergency Board said:

In handling this problem the Board has at times relied on the language of the Scope Rule as in Award 604 and those following it. It has also recognized that a general scope rule, such as the one with which we are dealing, contains no description of the specific duties of a position. For this, we must look elsewhere. The name of a job does not give us its content. To learn what duties the parties regarded as embraced in a job title we must look to their custom and practice. We think this view should be preferred because it is based upon not only the language but also the setting in which the language was used. In accordance with recent Board awards and, as suggested by the Emergency Board, this question should, therefore, be decided by referring to, the custom and practice on this property.

There are no previous cases between this Carrier and ORT concerning line-ups.

Although the main reliance of the Petitioner is on the language of the Scope Rule, which we reject in favor of custom and practice, Petitioner has also attempted to meet its burden of proof that copying line-ups, by custom and practice, was work of the telegrapher. We think Petitioner has met that burden. We start with the fact that at one time telegraphy was the sole method of communication, and the custom and practice was for telegraphers to handle all communications of record, among which were copying line-ups.. They were generally deemed to be the work of telegraphers, not because exclusivity was granted by the Scope Rule, but because of custom and practice.

It is undisputed that until recently at this station a telegrapher was on duty at all times around the clock. Under the well settled rule of law that a state of facts is deemed to continue until proved otherwise, we must presume that the custom and practice of using telegraphers for communications of records continued. If the Carrier asserts otherwise it becomes its burden so to prove. In handling the claim on the property the Carrier made no attempt to meet this burden other than to assert that Track Foreman Benson "secured' his line-up in usual manner."

When the local chairman protested that "prior to the time that the second trick was abolished at "W" Telegraph Office, Waverly, N.Y., that it was the usual manner for the section foreman to obtain all of their line ups from the telephoner or telegrapher on duty at that point," the Carrier again asserted that Track Foremen and other maintenance employes had obtained line ups for years directly from dispatchers and that this was the long standing practice.

Carrier's position was mere assertion and not proof. It was not until Carrier's reply to Employe's ex parts submission was made that evidence in the form of affidavits were submitted as to the alleged practice. Under Circular No. 1 of this Board such evidence, not having been presented to the Organization, may not be considered here.

It is unfortunate that Carrier waited so late to document its assertion as. to the practice. But Petitioner never had an opportunity to examine or refute such evidence and if we were to consider it it would manifestly be unfair.

Carrier asserted that two similar claims by the Organization were abandoned by the Organization. It infers from this that Organization thereby acknowledged that there was "no foundation for the allegation that operators have the exclusive right to handle train line ups * * * ". We do not agree that such an inference must be drawn. There are many reasons why a claim may

be abandoned. Inadequacy of evidence or oversight are equally tenable inferences. In the absence of more persuasive proof we cannot accept the Carrier's inference, especially so since this very claim refutes the inference.

Although the claim will be sustained we do not believe the Claimant is entitled to a call. The evidence is that Section Foreman Benson received the first line-up four minutes after the 12:30 A. M. to 8:30 A. M. operator, not the Claimant, finished his tour of duty. Skelley, the Claimant was on the 10:00 A. M. to 6:00 P. M. shift. If he had been called to handle the first line-up, it would have been at 8:34 A. M., one hour and 26 minutes prior to his scheduled starting time. He is entitled to overtime rate of time and a half for this hour and 26 minutes.

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 Carrier violated the Agreement.

AWARD