NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on the Colorado and Southern Railway, that:
EMPLOYES' STATEMENT OF FACTS: An Agreement between the Colorado and Southern Railway Company, hereinafter referred to as Carrier, and its employes represented by the Transportation-Communication Employees Union (formerly The Order of Railroad Telegraphers), hereinafter referred to as Employes and/or Union, effective October 1, 1948, rates effective as of December 3, 1954, including changes and agreed to interpretations to January 1, 1955, and as otherwise amended and supplemented, is available to your Board, and by this reference is made a part hereof.
At page 36 of the Agreement, Rule 38, Rates of Pay, are listed the positions covered by the Agreement at Fort Collins, Colorado, on the effective date of said Agreement. The listing, for ready reference, reads:
CARRIER'S STATEMENT OF FACTS: There is no record whatever or remembrance by the employes allegedly involved of any transaction on May 7, 1965, as described by the petitioning Organization in Item 1 of the claim hereinbefore alleged and asserted. Consequently, the claim is fundamentally erroneous thus undeserving of consideration.
Be that as it may, Station Agent F. P. Gergely, Fort Collins, Colorado, did have telephone conversation at 7:10 A. M. on Tuesday, May 4, 1965, with Telegrapher S. F. Pope, Loveland, Colorado, during the course of which Agent Gergely requested Telegrapher Pope to give northbound freight train No. 77's crew a message to pick up five empty cars for the north off No. 1 track, North Yard, Fort Collins, and that the waybills therefor would be in the telephone booth, the customary place. (Carrier's Exhibit A.) From such information, Telegrapher Pope composed and delivered to No. 77's crew, as intended, the following message:
Telegrapher Pope, who took such information and composed the message, is regularly assigned at Loveland, hours 7:00 A. M. to 3:00 P. M., Monday through Friday.
The Telegrapher named in the instant claim (G. W. Colvin) is regularly assigned Telegrapher at Fort Collins, hours 9:00 A. M. to 5:00 P. M., Monday through Friday, and was off duty at the time. There is also another Telegrapher with assigned hours 6:00 P. M. to 2:00 A. M. at Fort Collins. There is no "first shift telegrapher-clerk" at Fort Collins as the previously-described claim, for purposes unknown, indicates.
OPINION OF BOARD: This case involves the handling of a message over a telephone by an employe other than a telegrapher. Petitioner alleges a
violation of the Scope Rule, which though admittedly broad and general in its terms, covers the handling of messages such as the instant one, because, they allege, such messages have been handled by telegraphers by history, tradition and custom to the exclusion of all other employes.
The latter allegation has been made throughout the record before us but Petitioner has failed to present any substantial evidence in support of its position. The burden of proof is always on the Petitioner to prove his case by a preponderance of the evidence.
We find no evidence that messages such as the one before us have been handled historically, traditionally etc. by telegraphers to the exclusion of other employes. We will deny the claim.
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