Under the facts and circumstances present in this case and the reasons hereinbefore stated, Carrier submits that the claim as here submitted is without merit and not supported by any rule of the effective agreement, and requests the Board to so find and deny the claim.

OPINION OF BOARD: Employes contend that when Carrier extended the Yard limits, Carrier did not reclassify tracks from main tracks to yard tracks; that the claim is concerned only with the movement of trains on main tracks and not yard tracks; that the control of the movement of trains on the main line within Yard limits "has customarily and traditionally been performed by Train Dispatchers", that employes not within the Scope Rule are moving trains in violation of Rule 1(a), 1(b) 2 and 1(d) of the Agreement.

Carrier replies that the Train Dispatchers do not have the exclusive right to move trains on main tracks within Yard limits; that Operating Rule 80 has long established the practice that employes other than Train Dispatchers have moved trains; that no Train Dispatcher has been displaced; "that the Yardmaster was only performing his customary and accepted duties on this property."

Rule 1(b) describes the work of employes covered under the Train Dispatchers Agreement. It reads:

"2. Train Dispatchers, Relief Train Dispatchers, Extra Dispatchers.

Trick Train Dispatcher: Relief Train Dispatcher; Extra Train Dispatcher: These classes shall include positions in which it is the duty of incumbents to be primarily responsible for the movement of trains by train orders, or otherwise; to supervise forces employed in handling train orders; to keep necessary records incident thereto; and to perform related work." (Emphasis ours.)

Operating Rule No. 80 provides for the movement of trains "Within Yard Limits" as follows:

"(a) When a track car movement is to be made on other than main track, track car operator must obtain authority from yardmaster.

(b) When a track car movement is to be made on main track in automatic block signal territory track operator must obtain permission of Form D-TC-1 from yardmaster, but in his absence from Train Dispatcher. Track cars must be clear of the main track and reported clear by the time indicated on Form D-TC-1."

There is no question but that under Rule 1(b) 2 Train Dispatchers are exclusively "responsible for the movement of trains by train orders". No trains were moved within the Yard limits by train orders. Had they been so moved on the main tracks within the Yard limits, the issue would have been moot.

What then is meant by "or otherwise" moving of trains. Employes contend that Rule 80 cannot supersede the rules of the Agreement, that Yardmasters have no "right to issue D-TC-1 on main tracks" and that prior to the time Carrier extended the Yard limits, "the train dispatcher was required to authorize the issuance of Form D-TC-1 through signalmen or operators and to record the movements".

It is a fundamental principle of this Board that when there is a direct

conflict between provisions of the Agreement and an operating Rule that the terms of the Agreement prevail and take precedence. The connotation of "or otherwise" as used in Rule 1(b) 2 is a general one. Its meaning and the intent of the parties can be ascertained only from history, practice and tradition. The issuance of Form D-TC-1 by Yardmasters within Yard limits is not per se in direct conflict with Rule 1(b) 2. It gives meaning to the term "or otherwise" in that Rule.

There is no probative evidence in the record that Train Dispatchers had ever issued Form D-TC-I. Employes allegation that the Train Dispatcher had been "required to authorize issuance of Form D-TC-1 through signalmen or operators" refers to territory outside the Yard limits. But in any event it is a mere assertion and not evidence. Further, Operating Rule 80 has been in effect for more than twenty years. There is no showing that the Employes had ever refused to abide by this Operating Rule or had ever previously objected to the issuance of Form D-TC-1 by Yardmasters within Yard limits.

Employes rely heavily on Award 6885 as supporting its claim. That Award is distinguishable. First, the Train Dispatcher position was abolished and the position of Assistant Trainmaster was newly established. Second, the Board held that train and engine crews moved trains, "within yard limits on their own initiative" and that "when viewed in the light of all conditions and circumstances is tantamount to the issuance of train orders" by Assistant Trainmasters. These instructions included not only the movement of trains on the main line within the yard limits, but also "for the meeting of such trains within the involved yard limits as established".

Unlike the facts in Award 6885, the issue in this case is based primarily on history, custom and practice. Employes so state in their Ex Parte Submission. They say:

"Therefore, the issue to be resolved here is whether the work of directing the movement of Carrier's track cars on the main line track between Essington and Eastwick which has been historically, customarily and traditionally performed by Train Dispatchers, is within the scope of the agreement and therefore work contracted to the claimant employes . . ." (Emphasis ours.)

Obviously, this is an admission that "train orders" were not issued. There is no evidence that train orders were issued or that the movement of trains was "tantamount to the issuance of train orders". On the contrary, the historical, customary and traditional practice claimed by the Employes is based upon the interpretation of the meaning of "or otherwise" contained in Rule 1(b) 2, which the Employes say "obviously relate to the phrase 'by train orders' which immediately precede those two words".

But here we have Operating Rule 80 which was not involved in Award 6885. That Rule gives historical, customary and traditional meaning to "or otherwise" in Rule 1(b) 2 of the Agreement. This Operating Rule has been in existence and known to the Employes for many years prior to the filing of this claim. It has been the historical, customary and traditional practice of moving trains on the main line within Yard limits by Form D-TC-1 issued by Yardmasters for more than twenty years.

In the basis of all the relevant and probative evidence in the record, there is no merit to the claim.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are Tespectively 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 Carrier did not violate the Agreement.

AWARD