NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Richard F. Mitchell when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, A. F. OF L. (CARMEN)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the controlling agreement the carrier unjustly dealt with height Carman Painter H. R. Dawson in compensating him for his services at 88 cents per hour on June 12, 14, 15 and 16, 1943.
2. That in consideration of the aforesaid, the carrier be ordered to additionally compensate height Carman Painter H. R. Dawson for his services on June 12, 14, 15 and 16, 1943, the difference between the pay he was allowed and the rate of 95 cents per hour which he should have been paid.
EMPLOYES' STATEMENT OF FACTS: At Paducah, Kentucky, the carrier regularly employs both locomotive carmen painters and freight carmen painters. The applicable rates for locomotive painting is 95 cents per hour and for freight car painting it is 88 cents per hour.
Freight Carman Painter Dawson, the claimant, was assigned to paint the locomotive derrick, which job was completed in four days, June 12, 14, 15 and 16, 1943. For this service he was paid 88 cents per hour.
POSITION OF EMPLOYES: The current agreement of Carmen Special Rules, contains Rule 127, classification of work which reads in part as follows:
if it is necessary to remove the old paint, it is done by sand blasting. There is no lettering, the numbering being applied by stenciling. There is no varnish applied.
Decisions covering classification of work performed by locomotive and coach painters and that performed by freight car painters, as decided by the United States Railroad Administration, Railway Board of Adjustment No. 2, state the work of locomotive and coach painters to be the applying of varnish, lettering, surfacing or decorating. Painters not engaged in this work are classed as freight car painters.
Decisions DC-171, FB-276, FB-281, MR-353, MY-437, JY=603, 904, 1054 and 1099.
The current conception and application of the applicable rules has nat been subsequently altered by interpretation or practice nor lias the organization presented prior protest relative to the application of these rules or notified the carrier they desired a change therein. That a practice of many years standing is controlling in such circumstances is pointed out in Third Division Award No. 1397 and Second Division Award No. 1011, both being cited in the carrier's letter of May 24. In addition to these, your attention is called to Third Division Award No. 1435 in which the Referee states:
It is the position of the carrier that the evidence of record has conclusively established the fact that the rate of pay applied to the work performed by Mr. Dawson is proper and correct, that the classifications of freight car and locomotive painters were sanctioned by the United States Railway Administration as set forth in General Order No. 27, its Supplements, Addenda, Amendments and Interpretations, that the differential in the rates was established thereunder and that the limits of the work of each class have been clearly defined in the several decisions of Railway Board of Adjustment No. 2 cited hereinabove. These classifications are preserved and perpetuated by the current rules agreement and by past practice as substantiated by submitted exhibits. There have been no subsequent awards, under any duly authorized board, which have set aside these definitions. Therefore, in the absence of any negotiated change in the existing rules agreement, the claim of the employes must be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
At Paducah, Kentucky, the carrier regularly employed both locomotive carmen painters and freight carmen painters. The agreement provides that locomotive carmen painters who paint passenger cars and locomotives will receive $1.04 per hour, while freight car painters receive $0.97 per hour. Claimant, Freight Car Painter Dawson, was assigned to paint a wrecking outfit derrick. He was paid the rate of $0.97 per hour. The claim is that he should have been paid the rate of $1.04, which is the rate paid locomotive carmen painters. The current agreement specifically provides the rate to be 1070-11 276
paid for painting a freight car. It specifically provides the rate to be paid for painting a locomotive, but there is no mention as to what rate shall be used for painting a wrecking derrick. The current agreement not having any specified rate for painting a wrecking derrick, the rate that should be paid is the one that the carrier has been paying and the employes have been accepting over the period that this agreement has existed. Clearly, then, past practice of what the parties have agreed as the rate that should be paid is controlling. There is a dispute between the parties as to what the past practice has been. If it has been the past practice to pay a freight car painter when he painted a wrecking derrick at the rate provided for locomotive painters then the claim will be allowed; if, however, the past practice has been to pay a freight car painter when he painted a wrecking derrick the freight car painters rate, the claim will be denied. The claim will be remanded for settlement in accordance with this award.