^,ses Award No. 18040

Docket No. TE-17381

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

David L. Kabaker, Referee

1. Carrier violated and continues to violate the terms of an agreement between the parties hereto, when sixty (60) days prior to the date on which this claim is filed it permitted or required a member of the Marysville Sw:tcher, not covered by said agreement, to copy train orders or handle other matters of record before orally clearing their train with the train dispatcher at Roseville, California over the telephone before being permitted to leave home terminal Marysville, California.

2. *Carrier shall, because of the violation set forth above, compensate the senior extra telegrapher not working, or in the absence of such the senior available regularly assigned employe observing his rest days. a day's pay at the applicable rate, so long as the violation complained of continues.

The following telegraphers, with rest days shown, are available for the above claims:

C. L. Clark Tue. & Wed. S. A. Wagner Tue. & Wed.

W. E. Watson Sun. & Mon. R. G. Warwick Sun. & Mon.

R. K. Edgeman Mon. & Tue. R. W. Cartmill Fri. & Sat.

C. M. Thompson Wed. & Thur. E. F. Smith Wed. & Thur.

A. C. Akerly Tue. & Wed. M. M. Milne Sun. & Mon.

E. J. Morgan Sat. & Sun. P. E. Wagner Tue. & Wed.

E. C. Dyer Fri. & Sat. F. E. Alexander Fri. & Sat.

C. L. Wells Thur. & Fri. D. G. Bouequet Wed. & Thur.

E. H. McManus Fri. & Sat.

3. A joint check of the Carrier's records, to identify the proper claimant or claimants is requested.

* See Statement of Facts for adjustment in compensation demanded.

vised the conductor concerning track conditions as required by Rule 781. In this connection there is ao requirement for nor do we agree that the conductor involved copied any orders as contended by you. The flog, of information between conductor of said train and the train dispatcher as set forth in your letter, contrary to your contention, is system practice dating back some 35 years under CTC operation. Rule 781 of the Rules and Regulations of the Transportation Department is particularly involved. This rule was followed in the instant case in the same manner as has been done over the entire system of the Carrier since the inception of the CTC rules during which time your organization has never contended, nor does Carrier concede such handling to be handling train orders within the meaning and intent of Rule 29 of the current agreement or handling of communications of record as that term has been used.

"None of the work claimed herein in any way involved or contravened rights exclusively reserved to telegraphers on th's property; therefore, the claim is not sunnorted by any agreement or other reference cited by you and it is domed."

(Exhibits not reproduced.)

OPINION OF BOARD: This claim asserts violation of. the parties' agreeme'.,t occurs when a train service employe communicates with a train dispatcher by telephone and allegedly copies train orders or handles other matters of record ::t Marysville, California.

Monetary clsims in favor of seventeen regular assigned employes at other stations were made on the basis that they could have performed the worl: in question on their rest days.

No dates of specific claim are stated. The claim merely makes a general allegation and asks reparation retroactively for sixty days prior to the filing date, and prospectively into the future until the alleged violation is discontinued.

This Board has often enunciated the prin··.iple that the burden of establishing facts and evidence upon which a decision is requested rests with the petitione''. in our oninior, the ref-,,.d here falls far short of meetir- such burden. Therefore, without eapre'=ing any opinion concerning the merits of the parties' contentions concer.,ing use of the telephone in CTC territory, we will diamiss this claim for failure of proof.

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; and

That the Agreement was not violated.

AWARD