STATEMENT OF CLAIM:


              "1. (A) Carrier violates and continues to violate the Agreement between the parties when it requires or permits employes

    ' not covered by said Agreement usually the Assistant Chief

              Clerk) at Yuma, Arizona to transmit messages ('FS' Reports)

              by telephone to someone in the Chief Train Dispatcher's

              Office at Los Angeles, California,


              (B) Carrier shall be required to compensate in the amount of a special call payment on each date mentioned: J. P. Ray 2nd Wire Chief-Telegrapher-Clerk, Yuma on November 19, ~0, 21, 22, 259 26, 27, 28, 29, December 2, 3, 4, 5, 6, 9 10 119 .1 .2, 13, 169 17 18, 19 20, 22, 23, 24, ~5, 26, 2~

              2~,

              29, 30, 31 1959 Lnuary 1 , 2, 3, 6, 7, 8, 9, 10, 1966

              ' and W. T. ~Huey, relief Wire Chief-Telegrapher-Clerk, Yuma, on November 23, 24, 30 December 1, 7, 8, 11+, 15, 1959, January fit, 5p 1960; an 'd, on each date subsequent to January 109 1960 compensate the above named claimants, or their successors, in the same amount continuing on a day to day basis until the violation is corrected.


"2, (A) Carrier violates and continues to violate the Agreement
 r· between the parties when it requires or permits employes
 not covered by said Agreement (usually the 'Ink Clerk')
 in the Chief Train Dispatcherts Office at Los Angeles,
 California to receive and copy, by use of telephone,
 messages ('FS' Reports) from someone at Yuma, Arizona.
 (B) Carrier shall be required to compensate employes in 'HUI
 General Telegraph Office Los Angeles in the amount ox a
 special call payment on each date mentioned: G. Parke,
 Telephone-Message-PMO on November 19, 20, 25, 27, 30,
 December 1, 2, 3, 1+, A, 9, 10 11, ht, 15, 16, 1959,
 January 4, 5, 6, 7, 1960; 0. L Johnson, Extra Telephone
 Message-PMO, November 23, 24, 27, 1959; Laura O'Day, Extra
 Telephone-Message-PMO, December 7, 21, 22, 23, 24, 28, 29,
 301 19599 William Rogers, Extra Telephone-Message-PMO, on
 De,.-,ember 17, 1959; J. F. Hayes, Extra Telephone-Message-

                i -1-

_ . ~ ~ 55 3-g4wc/ ~'7

            "PMO, on December 18, 1959, D. M. Severns, Extra Telephone Message-PMO, on December 31, 1959, R. K Clifford, Relief Printer Machine Operator, on November 21, 26 .28; December 5, 12, 199 1959, January 29 9 1960; R. G. G&ohen, Printer . Machine Operator, on November ''z2, 299 December 6, 13-, 20,`~·... 25, 26, 1959, January 1, 3, 10, 1960;,and,on each'date-..' subsequent to January 10, 1960 compensate the above named claimants, or their successors, in the same amourit.continuing on a day to day basis until the violation is corrected."


OPINION OF BOARD : The claim is in two parts covering both ends of a
 conversation between clerical employees at Yuma, Arizona and Los Angeles
 which the Union alleges was in violation of the Agreement. It charges
 that on the dates set forth in the claim and on each subsequent date
 the clerk in the chief dispatcher's office called the clerk at Yuma
 and received from him by phone a detailed report on the.arrival.and
 departure of trains from Yuma during the preceding twenty-four hour
 period and the *·.·easons for any delays. This is known as the "Terminal
 Delay Report" ~,it was erroneously referred to in the Union's original
 claim and in its brief as an FS Report). A copy of the report for
 November :>, 1959, which is in the record, is a typical example of the
 charactr/1 of the daily telepho4e communication. Carrier does not deny
 1
 that st~:h telephone report was made by the clerk at Yuma to the clerk
 at LovAngeles nor does it take issue with the contents as illustrated
 by ttjs November 19th Report.

 The Union takes the position that this report was a communicat,~on of record and under the Scope Rule as generally interpreted, 7 bej3ngs to the telegraphers; that it was handled by telegraphers until
 ca,rier abolished an operators position at Yuma sometime prior to
 N<;rember,19, 1959, ,and began to have a clerk telephone the information

 rf

        i


t ~' -2-
 _ _ . S6 A 55 3 ', '7

      tip Los Angeles. In rejecting the original. claim Carrier took the position that these were merely telephone conversations between clerical employees incident to their duties. In its brief and at the hearing however, Carrier contended that the Union had failed to show any exclusive practice on the property for telegraphers to transmit this type of information, and therefore had established no right to the work. It says that while it was the practice of telegraphers to handle this information at some locations such as Sacramento and Dunsmuir, in four of the'dispatching offices including Los Angeles the , practice was for the clerk of the chief dispatcher to get this information from the clerk of the yardmaster. It asserts that there was no ,change in this procedure on November 199 1959; that the information in this report was the same as had been transmitted previously.

i ,
 i The Union produced sworn statements from various telegraphers
        stating ;,hat for many years (going back at least as far as 1941) they

        tranr4iitted such terminal delay report by teletype each night until the


I
        Cfxpany discontinued this sometime prior to 1959. Carrier produced

- statements (unsworn) from several clerks covering various periods of
 i
 time, stating that for many years the terminal delay report had been
 telephoned each day by the clerk at Yuma to the clerk at Los Angeles.
 One said he had done it for fourteen years. The evidence is sufficient
 to support a finding that for many years the telegraphers had sent
 this report daily by teletype. It also supports a finding that for
 many years the clerk at Yuma had been telephoning the same information
 each day to the ink clerk at Los Angeles. The evidence does not
 establish that the telegr:iphers,were aware prior to November 199 1959
 that the report was also i:eing telephoned. It is difficult, however,
        to see how the telephoning could have existed for so long without the

. knowledge of the Union.
        It is evident that the parties are in disagreement as to past practice on the property as well as in this particular location. But ye do not believe this case is controlled by past practice. The issue $s the type and character of the communication.. In our judgment this was a communication of record in the strictest sense of that term. It contained train numbers,, engine numbers, car numbers, arrival and departure times. It was necessary to prepare the report before transmission and it had to be copied by the receiver. The transmission and ' receiving of communications or reports of record has been determined many times by the Third Division to be work within the Telegraphers) Scope'Rule. Awards 64199 6343' 126109 12623. We have so held in Award i2 of this Board. It is not necessary for them to show an eY·:iusive practice in the performance of the work. This being so, evidence of a ,past practice on the part of clerks to telephone these reports cannot destroy telegraphers' rights to the work. Award 12667 (Dorsey) whore the Board said "evidence of practice cannot abrogate

I the rule. all;hough it may bar past violations. Either party may at
        any time rFjxuire that the practice be stopped ... ." See also

I,
        Award 1035: where the Board said, "For a past practice to ripen into


              an agreemdnt it must have been clearly understood and clearly adopted a by both rarties for a long time as recognized by, their mutual acquieslence." In the case at bar the evidence in the record does not


        establi.l>h any adoption or recognition by telegraphers of the practice

        i

        relied upon joy carrier' and we cannot say that it has become a part of

        the agaiaemenl:. As was said by Referee Dolnick in Award 126239· "If


                  I


            t I

      .° ~ . sae-~5~ a~ .


        Carrier is permitted to use employees other than those covered by r the Telegrapherst Agreement to transmit communications of record

' whether by telegraphy telephone' or other means, then the fundamental
        purpose of the Agreement is nullified. It is conceivable that the use

        of other employees may be more economical or more efficient. But there

        is no justification for their use. Carrier may,acquire the right to

        use such employees only by modification and amendment to the Agreement

        arrived at through collective bargaining as provided in the Railway

        Labor Act." For the reasons expressed we regard the claim as meritorious.

        AWARD

        The claim is sustained for a call. payment only for the dates mentioned therein. The continuing part of the claim is denied. SPECIAL BOARD OF ADJUSTMENT N0. 553


                        Roy R.'Ray, Chairm


        D. A. Bobo, Employe Member, . Sloan, Ca rier Member


    r?,


F--..; ' San Francisco, California
        September 2,, 1965


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