TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
The Carrier violated the Agreement between the parties hereto when it permitted or required train service employes not covered thereby to transmit (OS) messages of record governing the movement of their trains directly with the dispatcher on his telephone line, as outlined hereinafter.
(b) Carrier shall be required to pay P. W. Lowery, Agent at Waverly, Ohio, a call, amounting to three hours.
1(a) At Washington Court House, Ohio, reports on arrivals, deliveries to connections, and departures of trains were transmitted by conductors on the following dates: November 22nd (two occasions), 23rd, 24th (two occasions), 25th, and 26th (two occasions), 1960.
(b) Carrier shall be required to pay in each above instance eight hours at straight time rate to the senior idle employe, or if no extra employes were available, eight hours at time and one-half rate to the senior regularly assigned employes on their rest days.
(c) Carrier be required to permit a joint check of its records to establish names of proper claimants.
EMPLOYES' STATEMENT OF FACTS: The incidents which occasioned the charge of Agreement violation are somewhat similar in all claims here in appeal. The issue in complaint developed when trainmen, on the specified dates, handled communications of record, which the Employes contend is work accruable to them.
The correspondence exchanged between the parties in the case handling of the subject matter of this appeal is reproduced below. Said correspondence is shown in respect to the particular claim involved and is prefaced with comment as to the date, sender and addressee.
From December, 1917 to March, 1920, the federal government, through the Director General of Railroads, assumed the control and operation of the nation's railroads. During this period the Director General of Railroads entered into agreements (known as National Agreements) with employe organizations which included, among other things, the classes and work of employes.
In 1920, the federal government terminated its control of the railroads and the control reverted to the private carriers. The National Agreements terminated with the federal control, and pursuant to Decision 119 of the U.S. Railroad Labor Board, Carrier abrogated the Agreement with the employes in July, 1921.
From 1921 to 1946 the employes of Carrier were not covered by any Agreement. In 1946, an Agreement was entered into between the parties, and, as indicated, the Agreement included a Scope Rule similar to that of the Scope Rule of the 1920 National Agreement.
The Organization asserts that: (1) Prior to 1921, the Scope Rule then in effect (and similar to the Scope Rule of the 1946 Agreement) reserved the exclusive right of all communications, including telephones, to those covered; and (2) What transpired during the intervening years between 1921 to 1946 are of "no importance or significance" because there was no agreement during that period.
Carrier contends: (1) All agreements prior to 1920 (1907, 1914 and 1916) were abrogated; (2) The Agreement of 1920 was entered into between the Organization and the U. S. Railroad Administration, and Carrier was not a party to it; (3) From 1921 to 1945, the telephone by reason of practice and Carrier's instruction was to allow various classes of employes other than telegraphers to use the telephone in transmitting information (excluding train orders); (4) From 1946 to the time of the present claims, such practice had been continued without objection by the Organization (with the exception of some claims filed in 1954, which were dropped); and, (5) Further evidence of such past practice was an attempted change in 1959 by the Organization to confine communication service and train order handling to those employes classified under the Scope Rule.
On the basis of the record, it is unnecessary for the Board to determine the effect of 25 years (from 1921-1946) of practice without an agreement, or the effect of an agreement entered into in 1920 between the Organization and the U.S. Railroad Administration to which Carrier was not a party. An examination of what transpired on the property subsequent to the Agreement of 1946 is sufficient to be dispositive of the issues raised in this dispute.
The record shows that from 1946 to the time of the present claims, Carrier required and permitted employes other than those covered under the Scope Rule to use the telephone to transmit communications. With the exception of some claims in 1954 (which were dropped), such activity was carried on without formal protest from the Organization. Moreover, in 1959 the Organization attempted, without success, to change the rule to confine communication service to those employes coming under the Scope Rule. The effect that may be given such an attempt was stated in Award 19372 (First Division):
Even in the absence of the evidence set forth above, the record fails to show that the Organization has met its burden of proving the exclusive right to the work by reason of custom, practice and tradition, on the property as is required by numerous awards of this Board. See Awards 11592, 13242, 13442, 13972, 14166.
Our attention is directed to Award 4516 (Carter) which has had considerable following, particularly by Referees in earlier awards. Award 4516 held, in effect, that in certain instances telephone work is, ipso facto, reserved exclusively to telegraphers, stating:
That conclusion is based on the premise that the work of the Morse code operator, formerly performed by telegraph and now performed by telephone, was the exclusive preserve of those coming under the Scope Rule of the Telegraphers' Agreement; and its historical and traditional implications industry wide required no examination of the practice on the property.
We are more persuaded by the large body of awards by this Board which rejects historical assumptions given industry wide effect, and, instead, requires an examination of the past practices of the parties on the property with the burden on the Organization to prove exclusivity. Awards 10425, 10918, 11592, 11812, 12356, 12700.
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