(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes ( (formerly Transportation-Communication Division, BRAG) PARTIES TO DISPUTE: (George P. Baker, Richard C. Bond, Jervis Langdon, Jr, ( and Willard Wirtz, Trustees of the property of (Penn Central Transportation Company, Debtor

 STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Com
 munication Division, BRAC, on the Penn Central Transportation
 Company (former NYC-Northern District), TC-5844, that:

1. That S. Kowlczyk be paid 8 hours pro rata for July 4, 1970 account train orders numbers 4 and 18 copied by employees not covered by our agreement and July 12, 1970 account train order Numbers 8-16-20 copied by crewmen at Sterling Yard.

 2. That R. 0. Freidlund be paid eight hours pro rata for June 27, 1970 and June 28, 1970 account train order numbers 43-44-37 and order no. 9 copied by employees not covered by our agreement, at Sterling Yard.

1. The Carrier violated the agreement between the parties when it allowed or required the Operator-Clerks at North Yard to perform the duties and responsibilities as assigned to the Operator-Clerks at Sterling Yard Monday through Friday of each week except on Saturday, Sunday and Holidays which then are performed at North Yard.

 2. That the Carrier shall compensate Mr. E. R. Irons 8 hours at straight time for June 6, 13, 20, 27, and July 11, 1970 account the aforesaid violations.

1. That the carrier violated the agreement between the parties when it allowed, permitted and/or required a employee not covered by our agreement to copy train orders at Sterling Yard.

 2. The carrier shall compensate the below named claimants for eight (8) hour pro rata or the dates as li=red.


        R. Friedlund July 26, 27, August 10, 17, 1970

        S. Kowalcz July 18, August 1, 2, 8, 25, 1970

        E. R. Irons July 18, 25, August 1, 8, 1970

        B. M. Fair June 28, July 4, 11, 25, 26, August 8, 1970


        CLAIM NO. 4


1. The carrier violated the agreement between the parties when it required and/or allowed employees not covered by the agreement to report themselves in the clear, ca track at Sterling Yard.

 2. That E. R. Irons be paid one day's pay at the pro rata rate for August 22, 1970 account the violation.

        CLAIM N0. 5


1. That the carrier violated the agreement between the parties when it allowed and/or required employees not covered by our agreement to copy train orders at Sterling Yard and acquiring clearances from the dispatcher.

 2. that Mr. E. R. Irons be paid 8 hours pro rata pay for September 12, 1970 account such violation.

        CLAIM N0. 6


1. That the carrier violated the agreement between the parties when it allowed and/or required employees not covered by our agreement to copy train orders at Sterling Yard and acquiring clearances from the dispatcher.

 2. The carrier shall compensate Mr. S. Kowalczyk eight hours at pro rata rate for October 24, 25, 1970.

        CLAIM N0. 7


1. That the carrlgr violated the agreement between the parties when it allowed and/or required the Operator-Clerks at North Yard to perform the duties and responsibilities as assigned to the Operator-Clerks at Sterling Yard Monday through Friday of each week except on Saturday, Sunday and Holidays which then are performed by North Yard.

 2. The Carrier shall compensate Mr. E. R. Irons for September 19, 26, October 3, 1970 and Mr. D. A. Besterci for September 26, October 3, and September 12, 1970 at eight hours pro rata rate for such dates as shown.
                    Award Number 20006 Page 3

                    Docket Number TE-19637


        CLAIM N0. 8


1, That the carrier violated the agreement between the parties when it allowed and/or required the Operator-Clerks at North Yard to perform the duties and responsibilities as assigned to the operator-Clerks at Sterling Yard Monday through Friday of each week except on Saturday, Sunday and Holidays which then are performed by North Yard.

 2. That the carrier shall compensate Mr. D, A. Besterci for October 31 and November 7, 1970 for eight hours at the pro rata rate.

        CLAIM NO, 9


1. That the carrier violated the agreement between the parties when 1t allowed and/or required the Operator-Clerks at North Yard to perform the duties and responsibilities as assigned to the Operator-Clerks at sterling Yard Monday through Friday of each week except on Saturday, Sunday and Holidays which they are performed by North Yard and employees not covered by our agreement.

 2. That the carrier shall compensate Mr. E. R. Irons for October 10, 31 and November 14, 17, 21, 24, 28, December 5, 12, 1970. Mr. D. Besterci for

 November 10, 14, 17, 21, 24, 28, and December 5, 1970 at eight hours pro rata for such dates as shown.

        CLAIM N0. 10


1. That the Carrier violated the Agreement between the parties when it allowed, permitted and/or required employes not covered by our agreement to copy train orders at Sterling Yard, Utica, Packard Switch and Yates.

        K. Kowalczyk 8 hours pro rata on December 19, 26, 27,

        1970 and January 1, 2, 3, 9 and 10, 1971.

        D. Besterci 8 hours pro rata on December 12, 19, 26,

        1970 and January 2, 1971.

        B. Fair 8 hours pro rata on January 1, 3, 9, 10,

        1971.

        S. Kowalczyk 8 hours pro rata on November 7, 1970 and

        December 12, 1970.

                    Award Number 20006 Page 4

                    Docket Number TE-19637


OPINION OF BOARD; In claims #1 through #10 the Organization contends that the
 Carrier permitted employees not covered by the Telegraphers' Agreement to copy train orders.

 The Carrier contends, as a threshhold issue, that claims #1 through #8 are barred under rule 35 of the Agreement because the Carrier's highest Labor Officer on the property denied these claims on January li, 1971 and the Organization failed to forwa December 14, 1971, a period weil beyond the nine month time limit set forth in Rule 35.

 While this Board has held in the past that such a procedural defect might be fatal to such claims (see Award 2494 Ferguson, 2nd Division and Award 15848), in this case the record does not support the Carrier's contention that these claims were not timely filed. The Organization pointed out that when these claims were discussed with the highest Labor Officer of the Carrier on the property on January 8, 19 Board and the parties are alleged to have agreed that these claims were to be held in abeyance until properly disposed by that Public Law Board. This was confirmed by the Carrier's letter of January 11, 1971 and by the letter of the General Chairman of the Organization of February 20, 1971.

 Rule 35, which sets forth the nine month time limit, provides that thIff parties may extend the nine month period by agreement. It would appear that t' parties in this case did agree not to process these claims to the Third Divisic,-_ National Railroad Adjustment Board pending resolution by the Public Law Board, which agreement would have the effect of delaying the nine month time limit. Therefore the Referee concludes that claims #1 through #10 are timely before this Board for disposition.

 On the merits, the Carrier contends that these claims may properly be divided into three groups:

 Claims #1, 3, 5 and 6, where the train orders in question were handled by a Train Dispatcher who transmitted same to the Operator Clerk on duty at North Yard Tower, who, in turn, delivered the train orders in question via telephone to various crewmen in Sterling Yard.

 The second category of claims #2, 7, 8 and 9, which allege that OperatorClerks at North Yard on Operator-Clerks at Sterling Yard, Monday to Friday, involving the handling of train movements during hours when no operator is on duty.

 The third category of claims #4 and 10 involve the copying of train orders at locations where no Operators are employed.
                    Award Number 20006 Page 5

                    Docket Number TE-19637


The Carrier claims that past decisions of this Board have held that in each of the circumstances similar to the above it was appropriate to assign the work as it was performed. The Organization contends that Award II6, Public Law Board 369 is controlling and holds that "Whether a telegrapher works full or part time at a station, if he is the only employee assigned thereto and he alone performs all of the communication and clerical work, he owns the work,"

 This Board has held in the past with regard to similar issues that where it has been shown that the work in dispute belonged to the Telegraphers by virtue of history and practice on this property, it shall be deemed Telegraphers work, (Award 134
The claims numbered 1, 2, 3, 5, 6, 7, 8, 9 in this docket relate to situations where the Telegraphers regularly performed the work in question and therefore the work shall be deemed Telegraphers work. Since the Carrier claims that the claimants would only be entitled to a call as the work claimed would have taken no more than a few minutes to perform, Rule 5 of the Agreement would apply. Rule 5
        "Except as provided in Rules 11 and 12, employees notified or called to perform service not continuous with the regular work period, will be allowed a minimum of 2 hours at time and one-half rate, and if held on duty in excess of 2 hours, time and one-half will be allowed on the minute basis"


The claimants, therefore, are only entitled to 2 hours'pay at time and one-half for each occasion.

 The employees Organization failed to show that the tasks performed in Claim #4 and Claim #10 are regularly performed by Operators. These claims must be denied.

        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
                    Award Number 20006 Page 6

                    Docket Number TE-19637

and 9, That the Agreement was violated in claims #1, 2, 3, 5, 6, 7, 8,

        The Agreement was not violated in claims A and 10,


                      A W A 2 p


The claims are granted as modified in the Opinion, Claim #4 and Claim #10 are denied.

                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of October 1973,
          CARRIER S' DISSENT TO AWARD N0. 20006

          DOCKET NO. TE-1963

          REFEREE BRENT


The Award on the merits reflects a failure by the majority to clearly analyze the issues in the case, and a resulting reliance on precedents which have no bearing decisions.

 The reference to Award No. 6 of Public Law Board 369 is wholly inappropriate. That Award was based on the so-called "one-man agency" principle which evolved from various Awards of this Board applying the scope rules of agents, or agent-operators agreements. It had nothing to do with handling train orders and had no application at North or Sterling Yards, which are certainly not one-man agencies. It is a serious error to apply that Award to the present claims; and especially so when another Award of the same Public Law Board No. 369, Award No. 31, which was referred to in the record, had specifically denied claims for "handling" train orders which cannot be distinguished from the present claims.

 Reliance on Award No. 13456 is likewise wholly unjustified. The Carrier showed that this Award is erroneous and was out of harmony with a solid line of contrary authority on the former New York Central. See Award Nos. 12183, 13231, 16359. There is no showing that the work in dispute belonged to telegraphers "by On the contrary, by specific rule, Article 23(a) the only right of telegraphers is to handle train o operator is employed." Receiving train orders over the telephone by train crews is not "handling" them, as has been many times established.

 Finally, the majority completely. fails to analyze the different factual situations involved in the various claims which were lumped together in this docket by the employes and the Board over the Carrier's protest. Not all these claims even involved assertions that train orders had been handled. No restriction has been agreed upon, and none was shown in the record, against train service employes using the telephone for any reason in the course of train operations, except in the narrow case where such use involved handling train orders" as restricted by Article 23(a). That the majority sustained claims for use of the telephone not in connection with train orders, and in circumstances where train orders were not being handled, is contrary to established railroad practice and common sense.

 The majority opinion reflects an unfortunate failure to analyze the record and apply the contract as intended by the parties
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