C. Robert Roadley, Referee


      (Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employees PARTIES TO DISPUTE; (Chicago and Illinois Midland Railway Company


                    STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7155), that:


      1. Carrier violated the Agreement on September 2, 9, 10 and 15, 1971, when it required Section Foreman Curry, an employee not covered by the Agreement, to transmit a message of record affecting the movement of trains from Oakford, Il


      2. Carrier shall now compensate the senior idle extra telegrapher who was available for a call, in accordance with Article 7 of the Agreement for each violation of Article 13 of the Agreement.


      OPINION OF BOARD: On September 2, 9, 10 and 15, 1971 a section foreman used a

      telephone at a closed wayside station for the purpose of

      giving certain information to the telegraph operator at Havana, Illinois, 16

      miles from the location of said wayside station and 30 miles from the point where

      all extra telegraphers are headquartered. The position of the Organization is

      that in so doing the section foreman transmitted messages of record in connection

      with train movements, and safety of equipment and employees, which is the exclu

      sive work of telegraphers, These messages were then relayed to the telegrapher

      on duty at Shops Tower in Springfield, Illinois and then delivered via pneumatic

      tube to the Chief Train Dispatcher who issued certain train orders. Petitioner

      alleges that the train orders so issued were identical in language to the infor

      mation transmitted by the section foremen. In support of its position Petitioner

      has cited Award 4516 and Awards 13290, 13291 and 13292, among others, as being

      controlling in this instant case.


      The Carrier, on the other hand, in its declination letter dated October 27, 1971 stated:


            "The general chairman has alleged that the section foreman's use on four dates violated the telegraphers' agreement when he used a telephone to give the agent at nearby Havana station information of his working limits for forwarding to the chief dispatcher. A section foreman does not annul, put up orders, particularly those cited by the general chairman. Those cited (at the most) are considered to have been the Havana agent's transformation of data given him by the section foreman, which data


i.
                  Award Number 19849 Page 2

                  Docket Number CL-19919


        "(whether given direct to the dispatcher or given to Havana agent and transformed) was unauthoritative until received by the chief dispatcher (in this case also via another telegrapher at Springfield) for comparison and evaluation with other information he possessed before a train ord created and issued. There is no rule, custom, tradition or practice on the C&IM exclusively reserving the use of communication systems, including telephone The telephone conversations between section foreman and the Havana agent did not involve copying train orders (messages of record affecting the movement of trains) or a violation of Article 13.


        Article 13(A) of the Agreement states, in pertinent part:


        "No employee other than covered by this schedule and train dispatchers will be permitted to c emergency, ··-~,~-" (Emphasis added)


        Article 1 - Scope - of the Agreement states:


        "This agreement will govern the hours of service, working conditions and rates of pay of all Tel .Agent-Telephoners, Towermen and Levermen,"


        Article 7 - Calls - of the Agreement states, in pertinent part:


        "Employees notified or called to perform work not continuous with the regular work period, or continuous with, but in advance of the regular work period, will be allowed a minimum of three (3) hours for two (2) hours work or less, ·***,"


In its Ex Parte submission to this Board the Carrier made the following statements, among others
        "III (a) No instructions were received by the section foreman in the instant case; these September 1971 claims arose under conditions where the record shows no communications requirement prevailed as to the manner information would be obtained and evaluated by the chief dispatcher for the issuance of the Form W portion of train orders to extra train crews.


        (b) The election of the agent at Havana to construct a Form W type message from verbal information received from a section foreman neither made it a train order to a senior telegrapher, nor any other telegrapher.

                  Award Number 19849 Page 3

                  Docket Number CL-19919


        "IV (b) The last position at Oakford was abolished in 1966 - without dispute. A wayside telephone has always been in use at Oakford since that date - also without claim or contention that its use belonged to the senior extra telegrapher at Shops (Springfield).


        (e) The claimant 'Senior Extra Telegrapher available for a call in accordance with Article 7' is vague and ambiguous. Since adoption of the National Arbitration Award 298, all extra telegraphers have been designated as havin (Springfield). None were headquartered or available at Oakford in September 1971."


The Carrier also stated, in its Ex Parte submission, its position as to the inapplicability of Awards 13290, 13291, and 13292 to the instant case, as cited by Petitioner.

 Both parties have cited numerous prior awards of this Board in support of their respective positions. Petitioner relies primarily, however, upon Awards 13290, 13291 and 13292 as being controlling, in view of the fact that these awards pertained to the same parties involved in the instant case and allegedly concerned similar factual situations. In this regard it is interesting to note that in each of these three awards the Carrier Members of this Board dissented on the gr The Carrier, in the instant case, denied the applicability of these three awards to the case before us and this Carrier position was unrefuted by the Organization as no rebuttal to the Carrier's assertions was submitted.

 Insofar as Article 1 - Scope is concerned this Rule is similar if not identical to many such Rules in that it does not define the work and is general in nature. Therefore, Petitioner to prevail must prove by competent evidence that claimant has an exclusive right to the disputed work established through tradition, historical practice and custom on the Carrier's property. See Award 14941 and numerous others.

 Here again, Petitioner bottomed its position on the three Awards referred to above by stating, " where, as here, the disputed work has previously been held to fall within the Scope of the Agreement on three previous occasions, no ambiguity remains." Petitioner further stated, in this regard, as follows:

        "The sole issue to be determined by your Board is whether or not telegrapher employees have the exclusive right to handle messages

                  Award Number 19849 Page 4

                  Docket Number CL-19919


        "of record here involved which concerns the movement of trains, safety of employees, equipment and property, as already upheld by the Board on three previous occasi 13291, and 13292 in sustaining identical claims between the same parties." (Emphasis added)


Consequently, in regard to the question as to whether the information transmitted by the section foreman was a "message of record" the Carrier, in its submission to this Board stated, "Section Foreman Curry was neither instructed by the Carrier nor did he possess the authority to 'transmit' the 'message of record' erroneously ascribed to him by the General Chairman. The Agent, Havana, did not receive any alleged 'message of record' (train orders) from Foreman Curry." In Award 13290, the Board held that the first question to be resolved in reaching a determination was, "Is a notice of the type telephoned to the operator a message of record," On this point the Board stated, "In resolving the first question we are concerned with a communication that was specifically requested by the Chief Dispatcher 'so that all trains will have copy of this order at the effective starting time' ~'-°." (Emphasis added) As indicated above the Carrier asserted that the section foreman had neither the authority nor was he instructed to transmit such a message. Again, this statement was not re-
 futed by Petitioner as no rebuttal to the Carrier submission was made in the inc it
 case. The same premise was used in determining the answer to the question as to
 whether the communication involved was a "message of record" in Awards 13291
 and 13292.

 Further, in regard to the question of exclusivity, as raised by Petitioner, the Carrier also stated, in part IV (g) of its submission, as follows:

        "The Carrier has also relied upon the highest officer's final decisions in numerous cases that were MP-MRAC (TC) - 64-67-68-74) to demonstrate that so-called transmission of messages, as therein and h organization, are not exclusively reserved to telegraphers; (C&IM Exhibit 'D' - 4 sheets)."


As previously indicated herein the Petitioner did not elect to file a rebuttal statement to any part of the Carrier's Ex Parte submission, thus leaving material factual statements uncontroverted and undenied. Under those circumstances we will deny the and 22232 (Bailer).

 . r; 4c ,?nE~
                    Award Number 19849 page 5

                    Docket Nuuber CL-19919


        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 Fmployes involved in this dispute are respectively Carrier and Employes within the meaninS 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

        On the state of the record we will deny the claim.


                      A W A R D


        Claim denied.


                              NATIONAL RAILROAD ADJUSTMEt7T BOARD

                              By Order of Third Division


        ATTEST: , Executive ecretary


Dated at Chicago, Illinois, this 13th day of July 1973.

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