' the aj::ount of sixteen (16 ) holaro each a c zhe it re
 .. spective rates; J . H. MacI3pnald, R. U. LLz-iterson,




















































The Carrier's Submission refers to the work in dispute as the installation of a two inch waste oil line to a waste oil storage tank. Reference is made to pipe installation work in the new system performed by Bridge. and Building employes that was not disputed by the Sheet Metal Workers. . That Organization denies this and says that U did claim the work but could r.- Trot process the claim, because, of a technicality, Exhibit A of Employes' ~Rebuttal~.
Form 1 Award No. c400
 Page 3 Docke'L-, No. 6216

memorandum of Agreement was entered into by the Carrier and the tyro Organizations, parties to this matter, dated February 9, 1962, harrier's Mx.hib. I7. The Carrier asserts its right to exercise its judgment Lawause .one of the Agreements referred to are specific. Relying on past practice, it gave the pipe work to Bridge and Building members because, "the disposal of waste oil has always--," been performed by them, "and-also because it most closely resembled work which has historically been recognized as belonging to Bridge and Building plumbers, such as the installation of sanitary plumbing facilities."

 We believe that the scope rules for classification of work should be followed unless clearly accepted practice is different. They usually are general in nature because they are intended to include work which is customarily performed in routine operatior-9 or recurring situations. An unusual. or non-recurring situation does not lend itself to proof of past practice nor may we expect the unusual or unexpected to be specifically provided for in advance in the scope rules. Because both Organizations involired here do pipe work, there has been conflict which the parties attempted to resolve in the Agreement of 1962.

 This is indicated by claimant's General Chairran in his letter, Exhibit C of Employes' Submission.. He stated that the first oil waste disposal line was installed by outside contractors. Subsequently, sheet metal workers maintained and made modifications on the line and connected hoses and pipes to drain oil from diesels to the oil waste line. He also stated that Bridge and Building employes never installed oil waste pipe lines in the roundhouse. The letter points out that sheet metal workers have installed and maintained drain lines fran adja-dip, lye, cooling, steam, testing and oil vats to and including connections to sewage lines so that a past practice exists for installing drain or disposal lines in the shops and buildings. First and foremost, however, the letter claims the work by reason-of the sco=pe rule and the three party agreement of 1962.

 Reliance upon the 1962 Agreement is also stressed by the Carrier in its Submission, Exhibit C. The Statement is made that the 1962 Agreement did not contemplate that oil waste lines would be considered as oil lines; that there was no discussion of this because at that time waste was carried in the sewer system and dumped into ponds for disposal by Bridge and Building employes. This exhibit spelled out the Carrier's position as considering the present disputed line to be only a modern extension of the sewer drainage system.

 Although the three party 1962 Agreement was intended to reconcile conflicting viewpoints, the Carrier believes that it provided a reason for it to use its own judgment in assigning the work if the Agreement is not specific on ran issue. Both the Carrier and the Maintenance of Way Organization rely on past practice because the subject of oil waste lines was not discussed in. arriving at the 1962 Agreement. These arguments emphasize that this case involves unusual, unexpected and non-recurring work. This is not work which

Form 1 Award No. e)*Cio
 Page 4 Docket No. 6216
 -DM&iR-:'Y-' `T2

 in our judgment was contemplated by prior Awards which require convincing proof of past practice.

 Both Carrier and Third Party stress that this work should be considered only as modernizing and extending existing facilities. Tris is not so. There is no conflict over the fact that the new system required the installation of new pipe lines to new tanks and then to the point of disposal by a new method. This is no longer a system of drains, t-wuiels, ponds, marshland and creeks. The new system is nether a sanitary plumbing facility nor a sewer drainage system. It more closely resembles an oil.. line system such as we see at oil tank reservoirs, and at large manufacturing plants where a system of pipes carries oil or chemicals to and waste from the operation to reduce fire hazards and pollution.

 The three party 1962 Agreement specifies fourteen classed of work with carefully divided duties to be performed either by the clairuant or the Third Party. The heading, "Gasoline Lines" grants to Bridge and Building the cork for these lines to fuel Compar;y cars, trucks and other equipment but gives to sheet metal workers the worx of gasoline lines in or adjacent to oil house Buildings. The heading, "Oil Lines" directs that sheet metal workers will install, maintain and relocate all oil lines except in connection with heating. These two headings which deal with fuel include work-on such pipe lines to be performed by the claimant. The Agreement does not refer to the oil waste lines. This carefully worked out Agreement was intended to minimize the need and it does not provide for independent judgment by one party only without conferring with the other parties to the Agreement.

        The word "disposal" relied upon by the Carrier. and Third Party is not

the key to the past practice. The "disposal" referred to, as used in the record
 before us, consisted only of the burning of the petrbleum waste in the pond
 or creek where the waste finally came to rest in the old system. We believe
 that under the circumstances of this case, the waste oil pipe lines work be
 longed to the sheet metal workers as claimed. On the record presented and the
 contentions of the parties, there does not appear to be a clearly defined
 custom, practice and tradition to support the position of either Organization
 to the exclusion of the other. The degree of proof normally required of the
 claimant as spelled out in prior Awards submitted by the Carrier is not appli
 cable to this situation. -

 On the question of remedy, we have reviewed prior Awards which agree that a penalty to assure future compliance is appropriate for consideration although not spelled out in the Agreement. In this case, we rely upon prior kwards which have held that this is not, however, a hard and fast rule. We agree with Second Division Awards No. 4289 and 4312 which held that there should be no penalty where the violation was caused by misinterpretation or
 Form 1 Award No. 6400
 Page 5 Docket No. 6216
 2--DMIRJR-S,A-' 72

 misunderstanding or with regard to work which occurs infrequently. There was not an intentional disregard of a clear and specific rule or past practice.

                        A W A R D


        Claim is sustained in accordance with the above findings.


                          NATIONAL RAILROAD ADJUSUVENT BOARD

                          By Order of Second Division


Attest: _ _

 Executive Secretary

 Dated at Chicago, Illinois, this 16th day of November, 1972.