as proof in support thereof. The company has also shown that there has been no violation of Rule 81 of the agreement since the rule contemplates that painting of trucks on Pullman cars shall be performed by Pullman carmen painters only when the cars are placed in the Company's repair shops and further, that Rule 81 was not intended to cover such work as was never performed by Pullman Company employes prior to the consummation of the present agreement.

The company has shown, further, that it is a well-established principle that where a contract is negotiated and existing policy and practices are not abrogated or changed by its terms, such practices are enforceable to the same extent as the provisions of the contract itself. The company has also shown that in order to sustain this claim, the Board would be compelled to ignore numerous decisions of the National Railroad Adjustment Board as to the force and effect of past practice. Finally, the company has pointed out that the claim of the organization is excessive and further, that penalty payment for work not performed is at the straight time rate of pay. The claim should, therefore, be denied.

The summation of the principle here involved is set forth in the language of Award 217 of the Fourth Division, National Railroad Adjustment Board, Docket No. 215, which Award states as follows:

"We agree with the parties that the matter in dispute is not within the current agreement. It is not within the jurisdiction of this Board to either make, or amend, or nullify, agreements duly executed by a carrier and its associated employes. This limitation of the Board is bottomed upon the right of freedom of contract, sound principles of jurisprudence, and common sense. The Board has no authority to read into a contract that which its makers have not put there expressly, or by clear implication. The Board has said so many times. As noted in Award No. 5288, page 3 (1st Division Hon. Edward F. Carter, Referee), the Board has no power to rewrite the contract or to relegate to itself the powers and duties of the parties. And in Award No. 5396, page 8, (1st Division, Hon. Robert G. Simmons, Referee): 'In the absence of rules clearly establishing the right it will not be held that the carriers and employes contracted to pay and to be paid two days' pay for one day's work. In the instant case, the established practice followed, without objection, by both carriers and employes over a long period of time supports the position taken by the carrier in the construction of the cited rules.' Of course, repeated breaches do not abrogate a clearly expressed contract provision, but where the contract is silent, or the meaning of a provision is not clear, the long-continued practice of the parties is most persuasive proof that the practice was within the purview of the contract, and the intention of the parties. Such practical construction of a contract should not be brushed aside by any tribunal. This tribunal may only determine the question of where the parties have placed themselves by their own agreement."

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.

The parties to said dispute were given due notice of hearing thereon.

On June 12, 1952, thirty-two Pullman cars were assembled in the Pittsburgh and Lake Erie Railroad yard in Pittsburgh for use on Baltimore and Ohio special trains to leave Pittsburgh on June 14, 1952 en route to Miami,

course is part of the exterior cleaning, which is a responsibility of the railroad company."

. this matter has been taken up with our people and they advise that trucks of our cars are not re-painted between shopping periods, and as these cars have only been outshopped lately, it would appear to be a question of exterior cleaning, and that it is a case of cleaning instead of painting the trucks."

It is our opinion these quotes clearly indicate that painting trucks was not considered a part of exterior cleaning of the cars, the work reserved by the Baltimore and Ohio.

We come then to the question, was it reserved to the Baltimore and Ohio by practice under the classification of "Exterior car cleaning", particularly at the Pittsburgh and Lake Erie yards in the Company's Pittsburgh District? There is considerable dispute in the record as to just how this work has been handled but we do not think the showing made establishes a past practice so as to reserve this work to the Baltimore and Ohio. It may be that under other Uniform Service or Operating Contracts with other carriers that this work is specifically reserved or it may be that it is reserved on other carriers under language used by reason of past practices. We do not decide these questions here. All we determine here is that under the facts disclosed by this record the Company's painters were entitled to perform this work when it was performed at the Pittsburgh and Lake Erie yards in the Company's Pittsburgh District on Pullman cars that were to be put in service on Baltimore and Ohio trains.

We come then to the question of the extent to which the claim should be allowed. Whatever the amount of time for which the claim is eventually allowed it should only be at the pro rata rate for that is, under the circumstances here disclosed, the proper penalty for work lost. See Award 1530 of this Division.

The Company says the work did not actually take over thirty (30) hours whereas the organization says it took ninety-eight (98) hours and offers proof to that effect. The claim is for eighty (80) hours. The proof offered by the organization shows sixty-three (63) hours spent by Baltimore and Ohio employes in cleaning, scraping and repairing the trucks for painting and the painting thereof. That is the work for which claim is here made. It also shows Baltimore and Ohio employes doing thirty-five (35) hours of work on the Shriners' Special. Whether this latter was done in connection with painting the trucks is not shown by the statements of the employes who did the work. To hold it would only be conjecture on our part.

We therefore come to the conclusion that the claim should be allowed for sixty-three (63) hours at straight time rate.

AWARD