OPINION OF BOARD: After reviewing the entire record we find that the following facts were either or both admitted and proven.

Prior to the issuance of General Order 727 the primary responsibility for the direction of train movements on the track designated in General Order 727 was that of the Train Dispatchers. The track was changed from its previous status to secondary track. The movement of trains on secondary tracks does not belong exclusively to Train Dispatchers.

In Award No. 11239 (Moore) this Board considered a claim filed on behalf of the American Train Dispatchers Association against The Pennsylvania Railroad Company based upon the Scope Rule of their agreement and where the track had been reclassified.

In that award this Board said:

"We must first determine, if by agreement, the Carrier has precluded itself from the right to reclassify portions of its track. We are unable to discern any clause in the Agreement which limits the rights of the Carrier in this respect. We do believe that the reclassification must be reasonably justified and made in good faith. The good faith of the Carrier or the reasonableness of the reclassification of track is not challenged or contested in the record.

After the reclassification of track, the work is certainly of a different character. It no longer is work which is customarily performed by Train Dispatchers. We must now determine if by custom and practice on the system, the work belongs to Train Dispatchers. The Scope Rule is general in character. Therefore, we must rely upon the custom and practice upon the system. The burden of proof is upon the Petitioner. We find no evidence in support thereof."

We therefore have before us now, the same parties, the same agreement, the same rule of that agreement, and the same type of alleged violation.

Of the Dockets that come before this Board there are at least three types in which the previous awards play a predominant role.

First, there are those dockets in which the Claimant refiles a claim previously litigated. In this even the doctrine of res judicata applies and is a bar to the refiled claim.

The second is where a claim is filed involving the same parties as a previous claim and some or all of the same issues but a different cause of action. Estoppel by judgment applies to this type of action and precludes parties from contending to the contrary on any point or matter of fact, which has once been put in issue by them or those to whom they are privy and as an ultimate fact or conclusion of law has been found against them.

The third relates to claims filed involving strangers to a previous award which adjudicates the issues involved in the docket being considered. The principle to be applied in these cases is stare decisis.

Non jurisdictional error of a previous award can only be of consideration in the third class of dockets. This Board has no jurisdiction to try the same issue of fact or law between the same parties twice.

The principles set out herein are not only the law in the nations which derive their jurisprudence from England, but are also the law throughout the entire world. The principles are elementary, for indeed if res judicata, estoppel by judgment and stare decisis are not the law there is no law, there is no substance to justice, there is only procedure and argument. See the text books on Judgments, the Judgment sections of American Jurisprudence and Corpus Juris Secundum.

This docket is clearly one of those in which estoppel by judgment is applicable and in this particular docket no issues of fact or conclusions of law different from Award 11239 (Moore) are presented. Accordingly, this docket will be dismissed as no issues are presented herein which have not been previously adjudicated. See Award 4788 (Robertson); and 6935 (Coffey).

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