A denying award in the instant dispute is obviously in order on the basis of the conclusions expressed in Awards Nos. 5564 and 8538, which were incidentally reaffirmed by Awards Nos. 9005, 9006, 9454, 10516, 10683, 10776, 10817 and others.

In conclusion, the Carrier respectfully reasserts that the claim of the Employes in the instant dispute is entirely without merit or support under the governing Telegraphers' Agreement and should, for the reasons heretofore stated, be denied in its entirely.

OPINION OF BOARD: Petitioner contends that Carrier violated the Agreement on October 14, 1960, at Newkirk, Oklahoma, when it permitted a clerk, an employe not covered by the Telegraphers' Agreement to use the company telephone at Newkirk, to call the P.B.X. operator at Arkansas City, to report and transmit the following message:

It is agreed by the parties that the basic issue in TE-13824 is the same as in TE-13820 and TE-12789.

The submissions and arguments advanced by the parties have been carefully evaluated due to the unusual fact situation presented in the instant dispute.

Certainly the matter that precipitated this dispute involved a condition that demanded immediate attention. It was a matter which directly controlled the movement of Extra 165 West and immediately affected the movement of other trains on the division. Conversley, the condition that existed was one of an emergency which involved the safety of employes, property, and the public.

When this unusual condition was detected by the clerk, the clerk or any other employe, would certainly be required to do whatever he could, under the immediate circumstances, to correct the unsafe condition.

We find that this was an unusual condition which necessitated the call for the safe operation of trains on the railroad, and find no flagrant violation of the Agreement to justify a "call" payment.

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

It will also be obvious from the foregoing factual discussion that the petitioning Order of Railroad Telegraphers is attempting to obtain by means of an award of the Board in the instant dispute an exclusive right to the use of telephones which they have not only never enjoyed under the past and present Telegraphers' Agreements but were also unable to obtain in the negotiations leading up to the adoption of the current Telegraphers' Agreement and are again attempting to obtain by negotiation through the medium of the proposals they submitted in their requests of December 15 and 16, 1959 for a general revision of the current Telegraphers' Agreement, which have not been disposed of and are still pending.

It is needless to say that the Third Division has consistently recognized and held that it is without authority to either amend existing agreement rules or grant that which a petitioner has either been unable to obtain or is attemptor gant that which a petitioner as either been unable to obtain or is att ing to obtain by negotiation under the amended Railway Labor Act. In denying the claim of the petitioning Order of Railroad Telegraphers covered thereby, the majority in Third Division Award No. 5564 had the following to say with regard to the significance of the Petitioner's attempts to obtain by negotiation that which it was attempting to obtain by an award of the Third Division:

"It is also significant that despite the long list of awards which are relied upon by the Organization, going back to 1937, enforcing the Scope Rule under similar circumstances, the Organization has not heretofore sought to secure any relief from this Board. Neither can we disregard the numerous attempts by the Organization to secure by negotiation the result which it seeks from this Board, especially its pending request of the Carrier to adopt a train order rule in the language as set forth above." (Emphasis ours.)

See also Third Division Award No. 8538 which denied a claim of The Order of Railroad Telegraphers that arose on the respondent Carrier's property and in which the petitioning Order of Railroad Telegraphers was requesting the Board to grant employes subject to the Telegraphers' Agreement an exclusive right to certain work which the Petitioner had previously been unsuccessful in obtaining by means of negotiation in a proposed revision of the Scope of the Telegraphers' Agreement. The "Opinion of Board" in Award No. 8538 read in part as follows:

"Third, the record shows that Petitioner has sought unsuccessfully to revise this Scope Rule to insure an exclusive right to the operation of teletype machines, whether located within or without established telegraph offices.

When a collective bargaining agreement is consummated and existing practices are not abrogated or changed by its terms, those existing practices are just as valid and enforceable as if authorized by the agreement itself, (Awards 1257, 1568, 3461, 41054); and particularly when, as here, an existing practice is sought to be changed.

Claimants here have not conclusively established their right to perform the work in question to the exclusion of others similarly employed, either through custom and practice on this property or under the terms of the contract. Thus, in effect, this Board is being asked to grant something the agreement does not provide. The rule that we are without authority so to do is too well established to require further comment:' (Emphasis ours.)

AWARD