THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
the Time Limit Rule under Article V of the Chicago Agreement effective November 1, 1954, and not under any rules relied upon in this complaint. See Exhibit A attached.
There is no message of record in the dispatcher's office. If the conductor did in fact call the dispatcher, he did not deem it of sufficient importance to make it a message of record, thus it could not have directed the movement of the train. Message or telephone conversations are not recorded in the train order book.
OPINION OF BOARD: This submission presents eleven disputed claims. It is contended that the Carrier violated the Telegraphers' Agreement in that train orders and a message were handled by employes not covered by .the Telegraphers' Agreement.
Each of the alleged violations arose at points where no Telegrapher was employed. Moreover, each of these points (Calvin, Tupelo, and Allen) was a station that had been previously abolished by order of the Oklahoma CarpGration Commission, on ,the following dates: Calvin-April, 1957; AllenFebruary, 1960; and Tupelo-May, 1961. The alleged violations took place from February, 1962 to April, 1962.
It is not disputed that at the times alleged, Carrier's conductors copied train orders at Tupelo, Calvin, and Allen, and on one occasion a conductor sent a message from Allen. On another occasion, an assistant superintendent of Carrier copied a train order at AB Junction where a station had never existed, nor had an agent or telegrapher ever been employed.
Claimants, through the Organization, contend that such action violated Rules 1, 4, and 5 of the Agreement by permitting or requiring employes not covered by the Agreement to handle train ,orders and one message, and should be required to compensate the named claimants as provided in Rule 5 of the Agreement.
The issue presented in these claims is whether the Claimants had the exclusive right to handle train orders and other communications at stations which had been abolished.
It is clear that Rule 4 has no applicability to the facts giving rise to these claims. This rule, protective rather than permissive in its terms, provides that no employes, other than those covered in the schedule (Rule 1) shall be permitted to handle train orders. However, the rule obtains only
"at telegraph or telephone offices where an operator is employed and is available or can promptly be located * * *." (Emphasis added.)
We cannot extend its application beyond the plain meaning of its words to include abolished stations where no operator is employed. In this context we prefer the rationale of Awards 5866 and 12645 to that of Award 5992.
Rule 5 is given particular emphasis by the Claimants as a basis for recovery. It states:
Again, the facts giving rise to these claims do not come within the ambit of Rule 5.
We cannot construe Rule 5 to include conductors within the meaning of "Station employees", or to include abolished stations within the meaning of "closed stations". To so hold would do violence to the logic and intention of the Rule taken as a whole, particularly when it makes provision for payment to the "agent or telegrapher at that station for the day on which such service is rendered * * *". (See Award 1657 - Mitchell)
It has been seen, therefore that the two rules set forth above prescribe jurisdiction and remedy in situations anticipated by the parties to the Agreement. Rule 4 covers those situations where there exists a telegraph or telephone office, and where an operator is employed and is available or can be promptly located. Rule 5 anticipates situations where the station is closed in the sense that there is no operator on duty, or the station is nontelegraph.
Neither of these rules encompasses a situation where there is, in effect, no station and consequently, no operator.
Claimants contend that, in any event, Scope Rule grants and reserves to those employes coming under the Agreement the exclusive right to handle train orders, and such exclusive right continues even after a station has been abolished.
As stated, the Scope Rule, standing alone, does not grant to those coming under the Agreement the exclusive right to handle all train orders. "It is a general scope rule which does not by its terms explicitly reserve any par ticular work to the Employes." (Award 13972 -House).
In such cases, the prevailing and better-reasoned opinions hold that the Claimants have the burden of showing in the record that there prevails a system-wide practice, custom or tradition which reserves such work exclusively to them.
See also Awards 11758 (Dorsey); 11526 (Dolnick); 11239 (Moore); and 10615 (Sheridan).
It is therefore incumbent upon the Claimants to show by competent and convincing evidence in the record that by reason of system-wide past practice, custom, or tradition, there is reserved to employes under their Agreement schedule the exclusive right to handle train orders at stations which have been abolished. This they have failed to do.
Claimants cite Award 13290 (Zack) as authority for the proposition that a unilateral abandonment of a station by the Carrier does not affect the rights of the parties under the Agreement. More specifically, such abandonment did not give the Carrier the right to require employes, other than those coming within the purview of the Scope Rule, to handle train orders at abandoned stations.
An examination of that award indicates that the opinion was predicated on a finding from the record that the telegraphers had exclusive jurisdiction based on past practice and custom at the point, and not on past practice and custom system-wide, which is the prevailing view.
Under either test, the Claimants have failed to meet the burden in the claims before us.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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