The Second Division consisted of the regular members and in ad
dition Referee David R. Douglass when the award was rendered.
SYSTEM FEDERATION NO. 97, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Firemen and Oilers)
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY
COMPANY
performed this work at Topeka as well as other shop points for more than thirty years; that they were performing it when the effective agreement between the parties was negotiated in 1945, and that they have continued to perform those duties up to the present time. Manifestly, the agreement does not even by inference grant this work to shop watchmen covered by the firemen and oilers agreement and apparently this fact has been recognized by the representatives of the organizations throughout the past ten years in which the agreement has been in effect as this case is the only one of which we have record where the contention has been advanced that "Fire Watch" should be performed by the regular shop, yard and gate watchmen.
Many awards of the various Adjustment Boards are to the effect that a practice long continued without protest is evidence of the interpretation that the parties have applied to the rule. For instance, in Award 1088 of this Division, with Referee Richard F. Mitchell assisting, it was stated:
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 Fire Department Brigade at Topeka is composed of volunteer employes from various crafts. Such work is performed before and after their regularly assigned working hours and on Saturdays, Sundays and Holidays. The duty of the Fire Department Brigade is to watch for fires and to correct conditions which create fire hazards. These duties differ from the duties of shop, gate and yard watchmen, whose duties are more in the nature of general police protection.
The carrier alleges (and it is not refuted) that members of the Fire Department Brigade have performed the duties in question for over thirty years and that they were performing said duties at the time the carrier and the organization negotiated the effective agreement in 1945.
The record does not indicate to this Board that, either by past practice or by specific rule provision, the employes represented by this organization are exclusively entitled to the work in question. 2104-8 24
The majority's Findings and Award are erroneously based on the assumption that the time the so-called "Fire Brigade" spent in watching the property is different from the function of Shop Watchmen outlined in Paragraph "E", Rule 1, of the Firemen and Oilers current agreement. As a matter of fact, the work is the same, and is performed by employes coming under the Firemen and Oilers Agreement during the majority of the time.
On page 5 of the carrier's submission, a letter addressed to General Chairman Wheatley and signed by Mr. Comer, Assistant to the Vice-President reads in part:
It is obvious from the above quotation that the work in question belongs to the Firemen and Oilers, and an ordinary reading of the record in this dispute will show that the watching service performed by the Fire Brigade is work within the scope of the Firemen and Oilers' Agreement, and properly belongs to employes working under the scope of that agreement.