THIRD DIVISION
(Supplemental)
1. Carrier violated the Agreement between the parties on March 29, 30, 31, April 1, 2, 5, 6, 7, 8, 9, 12, 13, 15 and 16, 1965, when Section Foreman Hunnicutt, Henryetta, Oklahoma, received, copied and repeated line-ups when the Agent-Telegrapher was not on duty but available for such service.
2. Carrier shall compensate W. L. Holly, Agent-Telegrapher, Henryetta, Oklahoma, for a three-hour call for each of the above dates.
1. Carrier violated the Agreement between the parties on March 29, 30, 31 and April 6, 1965, when Lineman Shires, Allen, Oklahoma, received, copied, and repeated line-ups when the Agent-Telegrapher was not on duty but available for such service.
3. Carrier shall, because of employes not covered by the Agreement receiving, copying, and repeating line-ups subsequent to April 14, 1965, at Allen, Oklahoma, in violation of the Agreement, compensate J. W. Russell, Agent-Telegrapher at that station and/or his successor, for a three-hour call for each date such violation occurs.
EMPLOYES' STATEMENT OF FACTS: Copy of the Agreement between the parties, effective October 1, 1947, as amended and supplemented, is available to your Board and by this reference is made a part of this submission.
The stations involved in these claims are located on Carrier's main line between Muskogee, Oklahoma and Denison, Texas as follows:
The claims involved in this dispute were handled on the property in the usual manner and discussed in conference on November 15, 1965. All three present an identical issue; i.e., whether the Claimants have a contractual right to perform the work of copying line-ups.
On the dates specifically named in the Statement of Claim above, the line-ups in dispute originated with Carrier's train dispatchers at Muskogee. Effective with May 1, 1965, however, KO&G (Carrier's) train dispatcher positions were abolished. Thereafter, the line-ups in dispute originated with train dispatchers of The Texas and Pacific Railway Company located at Fort Worth, Texas.
Claimant here, as the Agent-Telegrapher at Henryetta, Oklahoma, is the only employe at that station covered by the Agreement. On the claim dates, his assigned duty hours were 8:00 A. M. until 5:00 P. M., with one hour off for lunch, daily except Sundays.
On the dates set out in the claim, a Section Foreman copied and repeated lineups of trains at various times between 7:33 A. M. and 8:00 A. M., while the telegraph office was closed. He copied the line-ups as they were repeated to him by the Agent-Telegrapher at Wapanucka, Oklahoma. The latter had received them on each date from the train dispatcher.
We note in the General Manager's letter addressed to you under date of June 25, 1965, he allowed Claim No. 13 in behalf of AgentTelegrapher W. L. Holly for April 14, 1965, and Claim No. 5 in behalf of Agent-Telegrapher J. W. Russell for April 14, 1965, because the facts show in those particular claims the PX line-ups were secured by the person requesting line-up directly from the train dispatcher rather than from a telegrapher. If you will refer to Award No. 2934 referred to and relied upon by you, you will find that the facts there clearly show that the line-ups forming the basis for these claims were secured directly from the train dispatcher rather than from a telegrapher. For this reason, Award No. 2934 does not support claims for other dates referred to above when the line-ups were secured from the Agent-Telegrapher at Wapanucka.
OPINION OF BOARD: The issue in this case is whether or not it is violative of the Telegraphers' Agreement for an employe of the Carrier who is not covered by the Telegraphers' Agreement to receive a train line-up at a station where a telegrapher is located but not on duty from a telegrapher at a distant location.
At the outset, it is observed that there has been a myriad of cases involving the question of whether the Scope Rule of the applicable Telegra phers' Agreement has been violated when an employe of a Carrier not covered by the Telegraphers' Agreement has received a line-up at a station where a telegrapher is located, either directly from a dispatcher or from a telegrapher
at a distant station. The Awards in these cases are not only multitudinous but are also in hopeless conflict. About the most that can be said is that each Carrier appears to have its own history on this issue and the Awards seem to depend largely, but not entirely, on the respective histories.
As for this Carrier, there has been only Award No. 2934. In that Award, the Board decided that it was violative of the Telegraphers' Agreement when a dispatcher communicated a line-up directly to a non-telegrapher at a station where a telegrapher was located. While it must be conceded that statements can be found in Award No. 2934 .that could be construed to mean that a non-telegrapher cannot receive a line-up even when sent by a telegrapher at a distant station, it cannot be denied that the facts in that Award were that a dispatcher communicated the line-up directly and not .through a telegrapher. Therefore, the Board finds that the exact issue here in dispute has not been decided by this Board as to this Carrier.
That being so, the Board is here called upon to determine whether it makes a contractual difference as to this Carrier when a line-up is received by a non-telegrapher from a dispatcher and when it is received from a telegrapher at a distant station. The Board notes that this distinction has been made in Awards regarding other Carriers and is persuaded that this distinction has merit. (See Awards Nos. 1552 and 1553 as to the Cleveland, Cincinnati, Chicago and St. Louis Railway Company and Award No. 15744 as to the Missouri Pacific Railroad Company). The distinction is particularly meritorious in the light of the more recent Awards in line-up cases which hold that .the Organization must prove that the work in dispute has traditionally and exclusively been done by telegraphers in order that the Organization prevail in its case. (See, for example, Awards Nos. 10367, 15687, 15916, 15936, 16433, 16502, 16519, 16682, and 16685.) The Organization in this case has not met this burden of proof. Therefore, the claims in this case will be denied.
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