TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
OPINION OF BOARD: On December 16, 1960, 'Carrier instructed a General Clerk, who is regularly assigned between 4:00 A. M. and 12:00 Noon, to handle and maintain the crew board at the Taylorville Station, including communication by telephone and clerical work incidental thereto, instead of having such work lay over during the night for the Agent to handle when he reports to work at 7:30 A. M. Petitioner contends that such work, as well as reports of OS's and tic ups allegedly handled by said clerk, had been performed at the Taylorville Station by Petitioner's members for over twentyfive years and that Carrier had violated Article 1, Scope Rule of the Agreement between the parties.
In the first instance, Carrier contends that there is a substantial variance between the claim presented to this Board and the dispute handled on the property. While there is a variance, the difference is in the wording and does not change the nature of the claim. We have noted that the initial claim referred solely to disputed work performed by a named clerk, where as the claim submitted to the Board states that "Carrier violated the parties Agreement . . , by transferring to employes not covered by said Agreement," certain work, which might be construed as encompassing more duties than were actually performed by the named clerk. However, the Board, if possible, should retain jurisdiction of a dispute and the Carrier has not been mislead as to the issues confronting it. Unlike the situation found in our Award 14298, we find that the variance involved herein was not substantial and will consider the dispute. Awards 10918 and 5077.
Petitioner objects to certain evidence offered by Carrier for the first time in its Ex parts Submission to this Board. Carrier's Exhibits C and D and
references to an automatic annunciator are all matters not raised by the Carrier on the property and are offered for the first time in the Submission. We find they are not properly before us for consideration. Awards 8484, 12790 and others. However, we do not agree that the two statements by Carrier's employes, who formerly worked at the Taylorville Station as clerks, are inadmissible inasmuch as the record discloses that Petitioner's General Chairman made specific reference to said statements during the consideration of the dispute on the property. Both statements are admissible in support of Carrier's affirmative defense that long established practices on this property do not support the Petitioner's contention that telegraphers had the exclusive right to perform the work here involved.
The record discloses and the parties agree that Carrier assigned the handling of crew boards and other similar duties to a clerical employe. Carrier contends that such work does not belong exclusively to telegraphers as asserted by Petitioner. The pertinent provision of the Agreement is as follows:
The above rule does not define the work and is general in nature. Therefore, Petitioner to prevail must prove by competent evidence that Claimants have an exclusive right to the disputed work established through tradition, historical practice and custom on Carrier's property.
Instead of offering evidence of the practice on Carrier's property system wide, Petitioner limits its assertions to Carrier's station at Taylorville, Illinois and admits that at other locations, clerks help maintain crew boards. Petitioner relies upon past practice at one station. However, no probative evidence was offered supporting the contention that telegraphers have exclusively performed such work over a period of many years. Carrier denies that telegraphers have maintained the crew board at the Taylorville Station to the exclusion of all other employes and offered in evidence statements of employes who formerly worked as clerks at said location, which clearly refute Petitioner's contentions.
We have studied the Awards cited by the parties, including those relied on by Petitioner between the same parties and under the same Agreement. It is significant that Awards 13290, 13291 and 13292 involved disputes concerning communications of record having to do with the operation of trains. Here, we are primarily concerned with communications by telephone in connection with the maintenance and handling of crew boards. Clearly, the issues in said Awards are readily distinguishable from those involved in the instant dispute and therefore, such Awards are not controlling.
Petitioner has failed to show by a preponderance of the evidence that the disputed work has been exclusively performed on the property by employes covered by the Agreement. Award 13335. We must, therefore, dismiss the Claim.