THIRD DIVISION

(Supplemental)




PARTIES TO DISPUTE:


STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Wabash Railroad, that:


1. Carrier violated the terms of the Agreement when and because it required or permitted a section foreman, on Monday, August 29, 1960, at Gallatin, Missouri, to handle a lineup direct with the train dispatcher, and;

 2. Agent-Telegrapher R. N. Sandusky, who occupied the position so classified at Gallatin, Missouri on the date in question, shall be compensated for a call (three hours' pay) in accordance with Rule 5 (b) of the Agreement due to Carrier's violative action by which it deprived him of the work to which entitled.

EMPLOYES' STATEMENT OF FACTS: There is an agreement in effect between the parties hereto, dated September 1, 1966, with subsequent amendments thereto, copies of which are on file with this Division; said agreement as amended is included herein by this reference as though set out word for word.


Mr. R. N. Sandusky, claimant, was the regularly assigned Agent-Telegrapher at Gallatin, Missouri, on the date of the asserted violation, August 29, 1980. Mr. Sandusky's assigned work week was Monday through Friday, with Saturday and Sunday as rest days. His regularly assigned daily work hours were 7:00 A. M. to 4:00 P. M., with one hour for lunch.


At 12:60 A. M, on Monday, August 29, 1980, a Section Foreman (J. Harris), who was not covered by the scope of the parties' agreement, and was at the time located at Gallatin, Missouri, requested and received a line-up from the Dispatcher at Moberly, Missouri, on the latter's direct telephone line.


Employes' exhibits identified as 08.T Exhibits Nos. 1 through 8 are attached hereto, which consist of reproductions of communications exchanged between the parties here in dispute, which are outlined in the following:



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the Railway Labor Act to provide for and govern collective bargaining relationships in the railroad industry.


The Railway Labor Act provides definite procedures for the handling of requests for changes in existing agreements relating to rates of pay and working conditions, see Section 6, Section 5 (a), Section 7 and Section 10 of that Act.


The Adjustment Board with its various divisions provided for in Section 3 of that Act is established for the limited and specific purposes provided in section 3, i.e., to consider and decide disputes growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions. This Board has no authority to add to, change or eliminate any rules of existing agreements or to place the Carrier in any position other than that in which it has placed itself by collective bargaining agreement.


The Carrier and its employes represented by The Order of Railroad Telegraphers have not by agreement provided that only telegraphers may converse with train dispatchers or that the receipt or copying of train line-ups or receiving or forwarding of "communications of record" may be performed only by teIegraphers nor have they agreed that a telegrapher will be paid a "call" as provided for in Rule 6 of the telegraphers' agreement and which is herewith claimed in this dispute when other than a telegrapher converses with a train dispatcher or receives or copies a train line-up or receives or forwards a "communication of record."


In order to sustain this claim, this Board must ignore the bounds of its authority and the processes provided by law for the progressing of changes in agreements relating to rates of pay and working conditions for railroad employes and thereby deprive the persons who own this company of property without due process of law.


This Board has no jurisdiction to supply that which the parties' agreement does not contain.


In view of the foregoing, the claim should be dismissed and if not dismissed, then denied.


    (Exhibits not reproduced.)


OPINION OF BOARD: The Petitioner contends that the information was a communication of record and that communications of record are reserved to them by the Scope Rule of the Agreement.


The issue is whether or not this work is reserved to telegraphers under the Agreement. Award 4516 and many others have so held. In recent years the Board has been holding that under a general Scope Rule the issue is determined by past practice on the property. Award 11401 on this same property, this Board held:


"Under Scope Rules, similar to the one we have here, there are many awards of this Board to the effect that the Claimant's right to the work which he contends belongs exclusively to him must be resolved from consideration of tradition, historical practice and custom and the burden rests upon the Claimant to prove his case,"
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on this same property this award was followed by Award 11671. Also Award 11592 followed this holding wherein the Board stated:


    "A considerable number of cases involving the question of Telegraphers' exclusive right to handle line-ups have been handled by this Board. The holdings have not been consistent. The more recentand more persuasive, in our Judgment -awards have held that in interpreting a general scope rule which merely lists positions or titles, guidance must be obtained from a consideration of custom, tradition and practice on the property (see Awards 10970, 10951, 10918, 10604, 10581, 10493 and others). In other words, there is no presumption of exclusivity-at least in certain areas-based merely on the listing of a job title and the fact that the employe possessing that title has performed the work in question. In a contested case such as this, the question must be asked: Did Claimants, by tradition, custom and practice on this property, perform the work to the exclusion of others?"


Award 12356 also followed the same line of reasoning. We believe the later line of awards should be followed and so we hold that the Claimant's right to the work must be resolved by the tradition, practice and custom on the property. Therefore, since there is no showing of past practice on the property the claim must be denied. The Opinion herein is confined to this Carrier.


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 the Agreement was not violated.


                AWARD


    Claim denied.


              NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION


              ATTEST: S. A. Schulty

              Executive Secretary


Dated at Chicago, Illinois, this 29th day of April 1965.