TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of .the General Committee of The Order of Railroad Telegraphers on the Panhandle and Santa Fe Railway, that:
EMPLOYES' STATEMENT OF FACTS: An Agreement between the parties, bearing effective date of June 1, 195:1, is in evidence.
From June 23, 1959, to July 13, 1959, inclusive, at McBride, Texas, located between Panhandle, Texas, and Borger, Texas, the foreman and/or timekeeper of a steel gang, an employe not covered by the Telegraphers' Agreement, daily, transmitted messages concerning working limits and slow orders to the train dispatcher by the use of the telephone, as evidenced by the following examples of slow orders transmitted by Foreman McCabe to the train dispatcher on dates indicated:
The Employes have neither furnished dates on which the alleged viola. tions are supposed to have occurred nor the names of the person or persons whom they consider to be entitled to the penalties claimed, but have named Davis King, who was the occupant of Agent-Telegrapher Position No. 2060 at Panhandle, as a secondary or alternate claimant. Except for a position of telegraph apprentice, Agent-Telegrapher Position No. 2060 was the only position on the station payroll at Panhandle. The details of that position's assignment were as follows:
OPINION OF BOARD: A steel gang foreman telephoned a Dispatcher and reported where his gang would be working the following day. The call was made from a blind siding where no telegraphers are employed. On the basis of the information given to him by the foreman, the Dispatcher issued slow orders. The next morning the timekeeper, attached to the gang, filed confirming wires with the Agent-Telegrapher on duty at Panhandle, Texas. Employes claim that the foreman and the timekeeper performed work which belongs to employes covered by the Telegraphers' Agreement. The issue is whether the telephone conversation was a communication or message of record.
A communication or message of record is one which affects the movement of trains, or one which affects the safety of persons or property. The telephone message from the foreman to the dispatcher is neither a train movement nor a message which involves the safety of persons or property. While it is true that the slow order issued does involve the safety of the gang, the telephone message, as such, did not issue the slow order. The Dispatcher, who is permitted to do so, actually issued the communication of record. See Awards 12618, 12383, 13742, 14533 and 14534.
Employes also urge that by past practice this type of communication has been held to be a passage of record. The fact that the Carrier has settled claims arising from the telephone conversations does not ipso facto constitute a past practice which validates this claim. Those claim settlements listed in Employes' Ex Parts Submission are not precedents because they do not emanate from the same set of circumstances that exist here. No claim settlement, identical with the facts upon which this claim is predicated, has been produced.
IThe several Awards, with the same Referee, cited by the Employes are easily distinguishable and are not applicable to the claim at hand.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: