1. Carrier violated the Agreement between the parties when, on the 6th, 6th, 7th, 7th, 7th, 8th, 9th, 10th, 10th, 12th, 12th, 13th 13t, 15th, 15th, 16th, 16th, 16th, 20th, 21st, February 1966, it required and permitted outsiders to report trains to the train dispatchers in Palestine, Texas, from the points hereinbelow described by Radio and telephone. In most cases the train dispatchers contacted the trains directly by Radio to secure the information.

2. Carrier shall compensate Agent-Telegrapher at Rockdale, Texas, One Call, three hours pro rata pay for violations on Feb 6th, 7th, 8th, 16th, 1966; and shall compensate Agent-Telegrapher at Navasota, Texas, One Call, three hours pro rata pay for violation on Feb. 15th, 1966; and shall compensate Agent-Telegrapher at Buffalo, Texas, One Call, three hours pro rata pay for violation on Feb. 21, 1966; and shall compensate senior idle telegrapher, extra in prof or idle on rest day, eight (8) hours pro rata pay for violations permitted on February 6, 7, 7, 9, 10, 10, 12, 13, 13, 15, 16, 16, 20, 1966.

3. Carrier shall compensate each claimant six percent interest on all sums due and withheld as a result of these violative acts.

EMPLOYES' STATEMENT OF FACTS: The five claims in this dispute were consolidated for the reason that they have in common the question of the application of Rule 2 (c) of this Agreement.

T.C.U. Exhibits 1 thru 10, attached hereto, are copies of the correspondence exchanged in the handling of Claim 1 on the property. T.C.U. Exhibit 11 is the original claim showing the facts in Claim 2. T.C.U. Exhibit 12 shows the original claim filed in Claim 3. T.C.U. Exhibit 13 is the original claim in Claim 4, and T.C.U. Exhibit 14 is the original claim on Claim 5.

The Employees have not burdened the record with reproducing the other correspondence in connection with Claims 2 thru 5 as the answers and discussions by both parties are quite similar.

As shown in T.C.U. Exhibit 1, the Carrier on various dates, by the use of the telephone and radio-telephone required or permitted train and engine service employees to block or report trains by telephone when no emergency was in existence.

quired by Article V of the August 21, 1954 Agreement. See Third Division Award 11754.

The claim involved numerous radio conversations between train crew members and the dispatcher, and three instances alleging clerks at passenger station at San Antonio reported departure of passenger train to the dispatcher. The radio conversations which you allege occurred between the train crew and dispatcher on the claim dates are typical of telephone conversations that have always occurred between the dispatcher and train crews prior to the advent of the radio. None of the radio conversations constituted a report of any train's arrival or departure from any point. There is no provision in Rule 2(c) which prohibits a dispatcher and a member of the train crew from conversing by telephone and/or radio or any other means of communication to exchange information that may be beneficial to either party in the planning of their work.

None of the conversations controlled the movement of any train as their train orders had been issued and no new orders were issued as a result of any conversation with the trains involved.

With respect to claims involving San Antonio, the dispatcher always secures departure time of trains from telegraphers on duty in 'MS' Office at South San Antonio. There is no dispatcher's telephone circuit in the passenger station at San Antonio.

In view of the foregoing, claims are without merit or rule support

and are hereby declined.

Yours truly,

/s/ B. W. Smith"

OPINION OF BOARD: This docket involves five claims and each of those five claims involves separate claims. We will discuss each claim separately.

Claim Number One

This claim concerns 30 separate radio/telephone conversations that allegedly involved the train service crew and/or the dispatcher at Palestine, Texas, in violation of the Agreement.

This Board reiterates that the burden of proving a violation of the Agreement is on the Petitioner unless Petitioner's allegations are accepted by Carrier.

Petitioner must show by competent evidence that the 30 separate radio/ telephone conversations did, in fact, occur. Petitioner must further prove that the alleged messages involved in Claim One belonged exclusively to employes.

Carrier, both during the handling on the property and in its submission to this Board, denied any violation of the Agreement. Carrier asserted in its defense that none of the conversations were reports; that none of the conversations concerned the control of movement of trains; that all of the conversations were permitted by past practice on the property; that all the allegations were mere assertions, unsupported by competent evidence; and that there is no showing that telegraphers have exclusive right to the use of radios.

Employes rely on the Scope Rule and Rule 2 (c) to sustain their claims. Employes present awards of this Board and Special Boards to interpret that work which belongs exclusively to telegraphers under the above mentioned roles.

We think it is fair to say that to determine whether a message is ex. elusively reserved to telegraphers we ask whether it is a communication relating to the control of transportation and if a record is required to be preserved. We agree with Award 10525 when Referee Carey, said: "A message telephone by a clerk to a train crew, which does not affect the operation of trains as do train orders and other communications relating to or affecting the safety of persons and property and which by their very nature should be made of record, would not be exclusively reserved to telegraphers."

The 30 items mentioned in Claim One, with the exception of Items 16, 27 and 30, should be denied on the grounds that employes failed to meet their burden by presenting competent evidence showing a violation of Rule 2(c). The items for which the Board denies relief either are unsupported by evidence or the employee have not shown such messages are the exclusive province of telegraphers.

This Board believes that employes established a prima facie case of viola. tions of Rule 2 (c) in Items 16, 27 and 30 and Carrier has not adequately refuted the charges. We believe that the messages involved in the above mentioned three items were such that a record should have been made and they would affect the operation of trains to the extent that this work belonged exclusively to Telegraphers, Therefore, the Board sustains the claim in Items 16, 27 and 30 of Claim Number One.

Claim Number Two

Claim Two includes 14 separate items. The Board finds that items 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13 and 14 cannot be sustained either because Employes failed to present competent evidence, or failed to convince the Board that the e.,c: saSUS involved comprised work belonging exclusively to Telegraphers.

That situation does not exist for items 6 and 11. The message alleged to have been transmitted in item 6 does seem to fall within the category of directing movement of trains. Carrier's defense that "such information is unnecessary in view of the fact that the block signal would perform this function" is not sufficient to rebut a presumption that Rule 2 (c) was violated.

Item 11 is clearly a violation of Rule 2 (c). Such a message does relate to the control of transportation and it is the type message for which a record should be made.

Therefore, the claims should be sustained for items 6 and 11 in Claim Two. All other items in Claim Two are denied.

Claim Number Three

This claim is denied because Employes have not convinced the Board that this is the type of message that belongs exclusively to Telegraphers.

Claim Number Four

Claim Four is denied because the Board accepts Carrier's defense that the only reason for the conductor of Extra 273 contacting the dispatcher again was to secure authority to open the switch to the main track which authority must be given by the dispatcher. Since this territory is controlled

by CTC, the dispatcher in Houston knew the location of trains. The message from the conductor did not involve the movement of trains. We cannot find a violation of the Agreement.

Claim Number Five

Claim Five includes 19 items. Claims for all items except item 7 should be denied because they are conversations of a general or informational nature which do not constitute work belonging exclusively to Telegraphers as have not successfully overcome Carrier's defense that conversations listed in all the items except item 7 of Claim Five are permitted by custom and practice on the property.

Item 7 of Claim Five should be sustained because this message clearly concerns the movement of trains and violates the Agreement.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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; an

That the Agreement was violated to the extent indicated in the Opinion.

AWARD

Claim Number One: Sustain claims for items 16, 27 and 30. Dismiss claims for items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28 and 29.

Claim Number Two: Sustain claims for items 6 and 11. Dismiss claims for items 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13 and 14.

Claim Number Three: dismissed.

Claim Number Four: dismissed.

Claim Number Five: Sustain claim for item 7. Dismiss claims for items 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST: S. H. Schulty

Executive Secretary