This agreement is revised as of September 1, 1949 and shall continue in effect until thirty (30) days' writeen notice is given by either party to the other of desire to revise or modify in accordance with the provisions of the Railway Labor Act.”

POSITION OF CARRIER: Petitioner, in its statement of claim, alleges that carrier violated the effective Telegraphers' Agreement when it required Claimant M. L. Jennings to leave a train order in the bill box at Bulls Gap, Tenn., before going off duty at that location at 10:00 P. M. on June 16, and the order was picked up at midnight by the train crew to whom it was addressed. Even though no one handled or even touched the order other than claimant and the conductor and engineer of the train involved, the ORT alleges that Rules 1 and 31 of the agreement were violated-this despite the fact that train orders have been handled in the same manner on the Knoxville Division for many, many years in the past.

It is carrier's position, and it will so show, that (1) the handling afforded the train order in this case was not in violation of Rule 1, 31 or any other provision of the effective Telegraphers' Agreement, (2) when claimant copied and delivered it in accordance with specific instructions from proper authority, he fulfilled all duties and responsibilities required of him in accordance with such order, and (3) carrier is entirely within its rights in eliminating any work that it does not want performed, and the Board has so held in numerous awards.

Certainly, no language contained in Scope Rule 1 supports the claim which the ORT here attempts to assert. This rule does nothing more than provide that the agreement applies to employes of the payroll classifications named therein. It does not refer to work or service to be performed by any employes of the telegraphers' class or craft. Thus, by no language in the Scope Rule is there the slightest implication that the carrier has contracted with its employes of the telegraphers' class or craft for the performance of any work or service. It is clearly not a classification of work rule.

Under Rule 31 of the agreement, telegraphers have a contractual right to handle train orders necessary to be handled at telegraph or telephone offices where an operator is employed and is available or can be promptly located. It is significant that such right is conferred upon telegraphers provided train orders are not handled by train dispatchers. Thus, the agreement recognizes that telegraphers do not have the exclusive right to handle all train orders, even at telegraph or telephone offices. However, in this case, Claimant Jennings copied the order and delivered it in accordance with specific instructions from proper authority, the train dispatcher. He therefore fulfilled all duties and responsibilities required of him in connection with the order. No one other than the telegrapher and the conductor and engineer of the train involved handled the order at Bulls Gap. The words "handle train orders at telegraph or telephone offices" as used in Rule 31 have no reference whatsoever to the obvious physical receipt or handling of such orders by conductors and engineers, and this regardless of whether the operator at the train order station delivers such orders personally to the conductor, or by train order hook, or as otherwise specifically instructed by the train dispatcher. Since Mr. Jennings performed the work of handling the train order in question during his regular hours, and no intermediate handling by any other person was involved, the claim is clearly not supported by the provisions of Rule 31.

Rule 44 provides that the agreement supersedes all former agreements,

but does not alter former accepted and agreed to practices, working conditions or interpretations. As shown in carrier's statement of facts, the District Chairman of telegraphers on the Knoxville Division did not challenge or deny the Superintendent's statement that the practice here involved "has been in effect on the Knoxville Division for many, many years." The District Chairman could not possibly deny that which is common knowledge on the Knoxville Division, where he is employed as telegrapher.

The term "handle train orders," as it is used in Rule 31, does not mean that each train order must be personally handed by a telegrapher to the conductor and engineer to whom addressed.

In Third Division Award 9988, the Board, with Referee Begley, held, in part, that:

The record also shows that the Telegrapher performs every duty that he has performed in the past, with the exception of personally handing to the crews of those trains which depart from the new West-End Yard Office the train order. The Scope Rule of the Telegraphers' Agreement does not give to them this work of personally handing to the crew these train orders."

All "handling" of the order necessary or required at Bulls Gap was performed by Claimant Jennings during his assigned hours. The instant claim is nothing more than a demand by the ORT that the Board re-write or change the literal language of Rule 31.

The Board has consistently held that no one is entitled to perform work which the carrier does not want performed. To cite but a few awards upholding this principle, carrier respectfully calls the Board's attention to Third Division Awards 5803, 6945, 7307, 7849, 8035 and 8417.

In Third Division Award 8327, the Board, with Referee McCoy, denied an identical claim and dealt thoroughly with this issued in the following language:

"OPINION OF BOARD: This dispute concerns the handling of train orders at Calais, Maine. The Organization claims a violation of Article 21, the Train Order Rule, which reads, so far as material:

'No employe other than covered by this Agreement and Train Dispatchers will be permitted to handle train orders

But it will be noted that the facts of those cases differ in one very material respect from the facts here: in every one of them an employe other than a telegrapher did some act of handling' a train order a yardmaster, the conductor of another train than the one addressed, or someone else not covered by the Scope Rule of the Telegraphers' Agreement. In the case before us, however, no human hand intervened between the telegrapher and the train crew to whom the order was addressed. No one but a telegrapher handled' the train order. He put it on the train register, and the conductor to whom it was addressed picked it up.

Now there is a line of cases involving such facts, but before

considering them it may be best first to discuss the case on principle. It is a fundamental principle that whether to have work done or not it in the Carrier's sole discretion. I know of no decision, apart from those to be discussed, which have held a carrier obligated to have certain work performed. It is only when a carrier decides to have work performed that the rights of employes to perform that work arises. If the wrong employe performs it, a violation of the Agreement has occurred. That is the extent to which our decisions in general have gone. The Scope Rule protects telegraphers from having their work taken by others. The Train Order Rule here is written in just such terms. It prohibits employes 'other than covered' from handling train orders.

Since no employe 'other than covered' handled the train orders in question, it seems too clear for argument that the Train Order Rule has not been violated. To hold that the Rule requires the Carrier to permit a telegrapher to do work that the carrier does not want done, is not only to twist and distort the plain words of the Train Order Rule but also to ignore the fundamental principle that it is for the carrier alone to decide what work will be done. If we should so hold, then I suppose it would follow that where a telegrapher has in the past made 6 copies of each train order he is entitled in the future to make 6 copies even though the carrier only requires 4 copies.

So much for principle, and we turn now to precedents. There is a long line of decisions upholding the Organization's contention in this case. Contrary as they are to principle, and wrongly decided according to Award No. 1821 as well as according to the many dissents, we have sought to find the basis for the erroneous departure from principle. That basis is to be found in a careless expression, not necessary to the decision, in Award No. 709. That case involved the copying of train orders by one not covered by the agreement, and correctly held the carrier in violation. But the referee said, 'the handling of a train order should include not only the physical process of passing it from hand to hand in the performance of its function but also the work involved in its preparation.' It was 'the work involved in its preparation' that was involved in that case, and the reference to 'passing it from hand to hand' was merely an unstudied reference to the fact that manual delivery was customary on that property and was not in issue.

In Award No. 1166, the first case in point, the Referee picked up that obiter dictum of Award 709, and made it the basis of the decision, along with an operating rule which required personal delivery, but which was not part of the agreement between the parties, and Award 1096 which was not in point. That decision (Award No. 1166) was clearly wrong.

It may not be inappropriate to insert a word here as to the propriety of considering operating rules. An operating rule, since it is promulgated by the Carrier unilaterally, confers no rights on the employes. It may be voided or amended unilaterally. The rights of the employes are to be found in the Agreement alone. But where a provision of the Agreement is ambiguous, requiring a consideration of practice to determine its meaning, it is entirely proper to consider operating rules for the light they may throw on practice. We have

done this many times. But where the provision of the Agreement is clear and unambiguous, it needs no interpretation. No evidence of any sort, operating rule or otherwise, is admissible to vary the terms of a clear provision of the Agreement. Such was the situation in Award No. 1166 and it is the situation here. The train order rule here is quite clear and it has not been violated. No one other than a Telegrapher handled the train orders in question.

Other decisions took the easy path of following the precedent of Award 1166, some of them relying also on operating rules, and some even relying on decisions not in point, namely decisions where an employe other than a telegrapher had copied a train order or had carried it to the train crew addressed-decisions obviously correct but not in point.

As case followed case, some of the referees followed the precedents with obvious reluctance. An example of this is Award No. 4057, where the decision states that the Referee in Award No. 3670 was 'less than enthusiastic' in following the precedents. Referee Lloyd Garrison, in following the precedent set by Award No. 1166, was so disturbed by it that he wrote a very lengthy memorandum justifying the following of erroneous decisions in certain circumsances (Award No. 1680). The circumstances here, where there are decisions both ways, do not require the blind following of either line of cases to the disregard of principle.

Until recently only one case had intervened in this unbroken line of cases to state a contrary conclusion. Referee Yeager, in Award No. 1821, expressly held the precedents wrongly decided. In so holding he said: 'No single detail was entrusted to anyone not covered

by the rule in question.'

...

The latest decision to which my attention has been called is that of Referee Langley Coffey, in Award No. 7343, decided in 1956. In that case, as in the one before us, the telegrapher left the train order on the train register book, and claimed a call. There was no train order rule, but the Referee held that 'the work of handling train orders on the lines of this Carrier is typical of work reserved' under the Scope Rule. So, as pointed out earlier in this Opinion, the absence of a train order rule was immaterial to the case: the Scope Rule gave the same rights as a train order rule could have given. The claim was denied on principle, without any reference being made to the precedents.

So we have a situation where we must decide either on the basis of a long line of precedents which we think unsound and contrary to principle, or on the basis of principle unsupported by two Awards, Nos. 1821 and 7343. We must either repudiate our latest decision supported by one earlier decision and principle, or confirm our latest decision and repudiate the earlier decisions as erroneous. We have no question as to our duty. It is to confirm Award Nos. 1821 and 7343, and thus confirm sound and long-established general principles. No one is entitled to perform work that the carrier does not want performed by anyone. Neither the Scope Rule nor the Train Order Rule is violated except when some employe other than a telegrapher performs telegrapher's work. For these reasons the claim will be denied." (Emphasis ours.)

The parties in Award 8327 had a train order rule similar to the one here involved.

The evidence of record does not support petitioner's contention that the agreement was violated, nor does it support the claim for pay. For the reasons set forth herein, the claim should be denied in its entirety, and carrier respectfully requests that the Board so decide.

(Exhibits not reproduced.)

OPINION OF BOARD: Carrier denies the violation of the Agreement but admits the facts as alleged in paragraph 1, of the claim.

The issue is whether the facts prove a violation of Rule 31 of the Agreement which is the so-called "Standard Train Order Rule."

When faced with like facts and arguments in Award No. 11788, we held that the Carrier party in that case violated the "standard train order rule." We reaffirm our holding in that Award and will sustain the claim in the instant case.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

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

Dated at Chicago, Illinois, this 30th day of June, 1965.

CARRIER MEMBERS' DISSENT TO AWARD 13712, DOCKET TE-12935

(Referee John H. Dorsey)

As reliance is placed upon Award 11788, our dissent to that award is, by reference, made a part of this dissent.

The award here sustains the claim though admittedly the Carrier did not permit employes not covered by the contract to handle the train orders involved. The train orders involved in this dispute were left in bill box by claimant telegrapher and were not subsequently "handled" or even touched by any