C:\AWARDS\OUT\3-13504.htm

Award No. 13504 Docket No. TE-12962

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

(Supplemental)

Preston J. Moore, Referee

PARTIES TO DISPUTE:

THE ORDER OF RAILROAD TELEGRAPHERS

WABASH RAILROAD COMPANY

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

1. The Carrier violated the terms of the Agreement between the parties hereto when it required or permitted an employe not covered thereunder to transmit a message of record on September 21, 1960, at Delta Yard, Ohio.

2. Carrier shall now compensate H. K. Sanders, extra Telegrapher, for eight (8) hours at the applicable pro rata rate.

EMPLOYES' STATEMENT OF FACTS: There is in effect an Agreement between the parties to this dispute, effective September 1, 1955, and as subsequently amended; copies of which are on file with this Board and considered as evidence in this dispute.

An office is located in Delta Yard, Ohio, which is maintained with a staff of personnel employed by the Detroit, Toledo & Ironton Railroad Company, none of whom are covered by the Agreement between the parties hereto. Said office staff consists of an Agent, and several Clerks, who perform service for three railroads; (1) Detroit, Toledo & Ironton, (2) Wabash, and (3) New York Central.

On September 21, 1960, at 2:11 P. M., a Train Dispatcher, Mr. Stimpfie, whose office is located at Montpelier, Ohio, called the Delta Yard Office and requested the departure time of the Delta Turn train. Mr. Howard, a Clerk employed in the Delta Yard, answered the Dispatcher's call on the telephone and furnished (OS'ed) the information sought by Dispatcher Stimpfle, that the Delta Turn train departed at 2:00 P.M.

Copies of letters exchanged between the parties in the case handling on the property are listed below showing the ORT Exhibit Numbers assigned to each and the letter date and brief content thereof:

[5951

13504-20 614

a position without advance notice under the Agreement, they have the same right to create a new position without notice. The Agreement provides that eight (8) hours shall constitute a day's work. The Agreement provides that employes will not be required to suspend work during regular working hours, therefor Sanders is entitled to be compensated for this violation on the basis of eight (8) hours at pro rata rate fixed in conformity with positions of similar class on same division. The compensation provided for under `special service' would be in line and conform to positions of telegrapher provided for in the Agreement. The fact that the dispatcher did call Delta Yard and request this information in itself constituted a need for a telegrapher at that point, and that such a need was not arranged for does not relieve the carrier from compensating the employe entitled to do the work. This has been upheld by the Third Division, National Railroad Adjustment Board and has, on overwhelming occasions, found this to be a violation."

Suffice it to say that it is the function of management to determine the number of employes needed to perform its work and to designate where those employes are to work; that there was no work at Delta Yard for a telegrapher to perform; and that no work was performed by either Train Dispatcher Stimpfle or a clerk at Delta Yard on the date in question which is neither in violation of the telegraphers' agreement or which would support a contention that a payment of eight (8) hours at straight time should be made in favor of an extra telegrapher as penalty therefor.

The claim is without merit and should be dismissed, and if not dismissed, 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 belong 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,"

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,

13504-21 615

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 latter 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. H. Schulty

Executive Secretary

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