( Freight Handlers., Express and Station Employee PARTIES TO DISPUTE:



(1) Ghrrier violated Rule 1 and other related Rules of the current Telegraphers Agreement; Role 1 and other related Rules of the current Clerk's Agreement; the Memorandum of Agreement signed December 17,# 1974 ands the Memorandum of Agreement signed December 220 1976 when it failed to bulletin a position at Sedalie,, Calitornisp and/or permitted the AT&ST Railway to man the position with Mr. Lou Nava and AT&SF employee begin September 24, 1979.

 (2) Carrier shall now be required to compensate Mr. 3. R. Van Schwartz the difference between the rate of pay he received working at Denver North Yard on clerical position and the amount that would have been paid an operator on straight time hours sad any overtime hours that were worked by Mr. Nave as well as any teal periods beginning September 24,, 1979 and contian-In until corrected.

 OPINION CF HOARD: The claim alleges that the Denver and Rio Grande Western
 Railroad Company violated the Scope Rule of the Telegrapher's Agreement by allowing the Atchiaaat Topeka and Santa Fe Railroad Compa:4y to utilize a Santa Fe Telegrapher to perform work at a Sedalia., Colorado station. The claim, asserts that the Denver and Rio Grande Western Railroad Company should have assigned one of its own employee (i.e.., the claimant).

 The claimed violation concerns a point Line arrmgemeat., is effect since about 1915; by which the previously existing trackage of each of the carriers was combined to form a two-track main line for their joint uses one operated Northbound and the other Southbound. 3o far as is here pertinent., tech terrier has continued to own and maintain its anigissl trackage.

 This dispute arose when the Atchison, Topeka and Santa Fe Railroad Company placed its employs at a facility in the vicinity of the Sedalia Station to perform telegrapher's work while a Santa Fe Gang was laying rail far Santa Fe on a Sawn Fe-cured track.


The Organization asserts that its claim is supported by past history. 1?t relies principally on as alleged agreement assertwily snide in the 19b0's between of Failroad Telegraphers (now BRAC). That agreement,, it nssertsj, established Sedalia as a Rio Grande station and stipulated that n Rio Grande employs would man any telegrapher position within station limits of Sedalia. The Carrier denies that nay such agreement was curs ands or historically recognized.

 The Organization concedes that it has been amble to locate and produce the agreement. It contends however., that the tact of the existence of the agreement is clearly established by the following undisputed circumstances:

        (1) A wire seat by the Rio Grande Superintendent to the Santa Fe Superintendent at the start of the disputed works stating:


          "Based on organizational contract with Telegrapherss Sedalia,, Colorado is a DRGiI Station to be manned by a DRGW employs. Any claim filed will be billed back against ATS&F.*


        (z) The written statement of a Rio Grande agent headquartered at Littletoao Co7.oradoi, that 'as past practice sad according to previous agreements in effect.,' he had protected emergency calls and work at Sedalia Station.


        (3) Rio Grande bulletins a fear months earlier awarding the temporary position of Operator-Sedalfa to n Rio Grande employs.'


The organization also concedes that Sedalia no longer exists as a station; but it maiatainsj, on the basis of the aforementioned circumstances and the Joint-Line t3metablep that the basic principle established by the alleged agreement still co
The Board concludes on the record made that the Organization has not met the burden of proving by clear and convincing evidence the existence of the agreement on which its claim is founded. That burden is especially heavy where as here the agreement sought to be proven would vary substantially the terms of a long-e
While we consider the wire sent by the Rio Grande Superintendent to be material to the Organizational claims we cannot regard that statement as sufficient in itself to establish the existence of the particular agreement as specified by the O Award ftumber 24177
 Docket Number CT·24oi,3

 Page 3

 or in the other circunstancesj, convincing evidence of a course of conduct over the years clearly demonstrating that the parties acknowledged and.
 accepted Telegrapher's work fair the entire operation is the area as pro-
 tected exclusively for Rio Grade employee.

 According7arp the Bawd must conclude on the record as a whole that the organization has not shown that the Rio Grande violated the scope provisions of its agreement with the Telegraphers by permitting the assignment of a Seats Fe employ*
The claim x311 be denied.

        FINDINGS* The Third Division of the AdjustzLent Boards upon the whole record end 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 Flaplayea within the meaning of the Railway Labor Act, as approved June 21., 1934;

 That this Division of the Adjustment Board has jurisdiction aver the dispute involved. herein; and

 That the Agreement was not violated.

 A W A R D
Claim denied.

 ATTEST: Acting Executive Secretary

 AATIOftAL RAILROAD ADJTJS24MT BOARD
 By Wader of Third Division

 National Railroad Adjustment Board

 By

' VZ-2E

Roaemevrie Breach- nietrative Assistant

 Dated at Chicago., zlliaois., this 28th day of February 1983.`