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                      CARRIER: TEL-152r111

                      SPECIAL BOARD OF ADJUSTMENT NO. 553 MWITTEE: J-482-1


        ' TRANSPORTATION.- COMMUNICATION EMPLOYEES UNION GRAND DIV.: 76$.1/5


                    SOUTHERN, PACIFIC COMPANY (PACIFIC LINES)


                            ROY R, RAY. Referee


      STATEMENT OF CLAIM:


          "l. The Carrier violated the terms of the Telegraphers'

          Agreement, particularly Rules 1, 29.169 17 and 19,

          when on November 23, 1959' it required or permitted employes

          in the Chief Dispatcher's Office, Tucson, not covered by the

          Telegraphers'.Agreement, to handle messages of record with an

          employe in J.(P. Griffin's Office in San Francisco.


          2. As a result of this violation' the Carrier shall

          compensate G. V. Fimbres, Relief Wire Chief' Tucson,

          or his successor, one special call for November 23, 1959 and

          subsequent dates.


          3. On each date subsequent to November 23, 1959 when

          similar violations occur, Mr. Fimbres or his

          successor or other employes assigned in 1UN1 Office, Tucson,

          who were available for call service.shall be compensated

          one special call for each instance.';


      OPINION OF BOARD: This claim deals with the 1 PM Situation Report. The


i
      Union charges that Carrier violated the Agreement on November 239 1959 and subsequent dates when it had a clerk in the Chief Dispatchers office

' in Tucson telephone this Report to a supervisor in the Genera. Offices in
      San Francisco. The Report gives the condition of the yards at Yuma and

:j Tucson' including such items as number of loads and empty cars, trains in
      and out and the times.

      The evidence shows the following: Prior to 19L~2 this Report was transmitted exclusively by telegraphers by means of telegraph or teletype. In 19L-2 Carrier began having clerks and other non-telegraphers telephone this same report to the San Francisco office, Telegraphers continued to

                                  = 2 =


      send the Report by teletype. On November 19, 19599 Carrier's Transportation Department in San Francisco sent a telegram to the Tucson office directing that the teletyping of the 1 PM Situation Report be discontinued.

      It also said, "This report will,be phoned in the future." On November 2~

      s" 1959 the Situation Report shown in the Record was telephoned by a clerk in the dispatcher's office and this practice has continued until the , present time.

' The Union contends that the work of transmitting this report
 ' belongs to the telegraphers and that by its action Carrier has wrongfully
      deprived them of it. Carrier takes the position that since this report

      had been telephoned by clerks for many years during the same time it was

      being teletyped by telegraphers that latter have failed to establish any

      exclusive right to the work. It emphasizes the fact that the Union did

      not complain for 17 years and until the work of teletyping the report was

      discontinued,

      The communication of reports of record belongs to telegraphers and it is not necessary for them to show an exclusive practice on the property in order to be entitled to the work. Award 2'7 of SBA No. 553 and


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      Awards there, cited. See also Award 3902 and SBA No. 136 Award 6. We hold the "Situation Report" to be a communication of Record and that its transmission belongs to telegraphers under the proper interpretation of the

      Scope Rule. Carrier originally referred to these reports as a mere conver-


      I ration between clerks, purely informational. However,, in its brief it

      .says that the information is sent to Carrier's transportation department where it is merged with information from all other divisions and used as a statistical, resume for examination by various executives and shows the


                            n a,

    . ' 0 -3 _ 0 S84553-I2,9


    performance or situation of Carrier's overall operation. When Carrier

    st%Tted having the report telephoned in 1942 it began to violate the -

    Agpeement. Although the evidence is not clear, we must assume that the

    telegraphers were aware that the same report which they were teletyping

    was also being phoned by non-telegraphers. If this is so they were

    unconcerned with the violation since they were still doing the same work

    as before. As soon as Carrier took the teletyping of the report from

    them in November 1959, the-violation became meaningful and the present

    claim was filed. It is one thing for Carrier to have a duplicate report

    telephoned and quite another for it to take from the craft the work which

    belongs to it.

    Since the work belonged to telegraphers they did not lose it by failing to assert their rights in 191+2 or shortly thereafter. They were entitled to assert the violation in 1959. The words of Referee Dorsey in Award 12667 are applicable here: "evidence of practice cannot abrogate the ruZe although it may bar past violations. Either party may at any tiafe~require that the practice be stopped ...." There is nothing in the

    w

    "record to indicate any acquiescence by the telegraphers in the Companyts position that they were not entitled to the work. We hold that by taking the work from the telegraphers and having it transmitted by non-telegraphers was a violation of the Agreement.

    The interest of the telegraphers is fully protected in having the work restored to them. We therefore reject any continuing claim, AWARD

            Claim sustained for:one call payment for November 23, 1959.


    Carrier is directed to restore to telegraphers the transmission of the

    i:

    1 PM Situation Report,

                          o.


                          ti

D. A. Bobo, Employe Member

 San Franciscot California September'2' 1965

 SPECIAL BOARD OF, ADJUSTMENT N0. 553

 Roy R. Ray, Chairman/

 0 51GA 55,3-Ax~ 9, 3

 L. W. Sloan, C rier lie~