. (Advance copy. The usual printed copies will be sent later.)
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6438
SECOND DIVISION Docket No. 6239
2-SOUZCM-'23.
I
The Second Division consisted of the regular members and in j
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation No. 21, Railway Employes'
( Department, A. F. of L. - C. I. 0.




Disnu_&er Claim of Emuloves:





Findingst .

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.



Prior to 1950 Claimant, a Carman,, was assigned to the Coster Shop of the Carrier at Knoxville, Tennessee and was a member of the wrecking crew working on the derrick stationed at that shop. In 1950 the derrick was transferred to Carrier's Sevier Yard at Knoxville. Members of the wrecking crew were given the- option of transferring with the derrick. Claimant did transfer,. was given a first shift repair track assigrunent, and continued as a member of the wrecking crew until approximately January 1970. At that time Claimant bid on a car inspector's job and, in accordance with the Agreement was awarded that position. Upon being assigned as an inspector, he was required to relinquish his position as a groundman on the wrecking crew. The Rules relating to the wrecking crew are as follows:




Form 1 Award No. 643$
Page 2 Docket No. 62~
' 2-SOU-CM-'~ __









The Organization alleges'that there are no Rules in the Agreement'requir.ing a Carman to work any specific ,job in order to be eligible to work as a groundman on the wrecking crew. The Carrier claims that the practice for many years has been for wrecking crew members at the larger shop points to be assigned to the first. shift on the repair track. Unrefuted evidence has been presented sspporting the practice claimed by Carrier; however, the practice is not alleged to exist at smaller points where wreckers are assigned or at Birmingham, Alabama, a large shop where a local agreement was made. The record also indicates that the parties in 1955 discussed the possibility of establishing a separate sub-department for derrick crews but did not arrive at an agreement.

The Carrier relies in part on Second Division Awards 2560 and 3898. In both of those cases, however, the question of the availability of the Claimants for wrecking crew service was the central issue; in this case there is no evidence that Claimant eras either inaccessible or unavailable for wrecking crew service. Award 2560 affirms the applicability of seniority for vrecking crew assignments. ,

With respect to the past practice argument raised by the Carrier, it is well established that a practice which is consistent, of long standing, is mutually acceptable, and is not contrary to the Agreement should govern. In this case the practice is not consistently followed throughout the Carriers operations. Furthermore, ire have held (Second Division Award 4591 and others) that: "Past practice does not now stop the Organization from enforcing a contractual provision'!. We find that the statement in Rule 152 "...Wrecking crews . ...shall be composed of regularly assigned careen..." is clear and unambiguous; it does not require special assignmnt or other qualification for assignment to the wrecking crew. 'We said in Second Division Award No. 3873 " ..custom or past practice are of no probative value in determining the meaning of a labor agreement if the wording thereof is clear and unambiguous." (See also Second Division Awards 1898 and 2210).

In Second Division'Award No. k30~'_dealing with a related problem, we:held that "...the carrier has restricted the seniority rights of its carmen'_to two particular classes (Car Repairers and Carmen Carpenters) and has thereby violated tile agreement of the parties." We concluded in that case that all carmen were eligible for wrecking crew assignments.

The Carrier also raises the argument that there is no-rule requiring wrecking crew assignments be made strictly on the basis of seniority. Rule 17 states:


Form 1 Award No. 6438
Page 3 Docket No. 6239
2-SOU-CM- ·'t3 .
"17. Filling Vacancies or New Positions in the Respective Crafts: _
When vacancies occur or new positions are created in the
respective crafts, they will be posted and employees given pre
ference thereto, efficiency and seniority to govern."

We can find no support for Carrier's position in either the Agreement or Board .
decisions. Wrecking crew assignments, even. though intermittant, are regular,
assignments in the context of the agreement (See Rules 152 and 153). We shall
reaffirm the principles enunciated in our conclusion in Second Division Award No.
5807, which closely parallels this case:


, ability for wreck crew duty spas no longer possible his status as such







We find no provision in the Agreement requiring the payment of interest, should a claim against the Carrier be sustained. This Board has held on numerous occasions that such-claims must be denied since we cannot award Claimant that which ! is not provided for by the specific terms of the Agreement (Second Division Awards 6261, 635? and, 51;67 among others).

$ased on the facts presented and the arguments adduced we conclude that Claimant should not have been removed from his position as a member of the wrecking crew. We shall sustain the claim, except for the interest payments.



        Claim sustained, but no interest will be paid. i-


                            MATIONAI. RAIIROAD ADJUSTMENT BOARD By Order of Second Division


                                                              I


Attest: _ . ~,l ,f~
Executive Secretary
i,

Dated at Chicago, Illinois, this 17th day of January, 1973.

                                                            .. I

DISSM of CARRIER DEMERS

TO

Aw'ARA 64I-AOC= N0. 6239


Award643$ is in serious error and we dissent.

There is no rule in the Agreement providing specifically that members of wrecking crews mus: be selected on the basis of seniority in the Carmen's craft. Neither Rule 1.52 nor lkile 17, cited in the Award so pro-rides. In the record before the Board there was no dispute between the parties as to the practice followed through the years i n nanning wreckers at larger points on Carrier's system. It is well. recognized that, where rules nay not be clear and unambiguous, the Board must then loot t o practice to determine the irx':ent of the parties. This principle should have been adhered to herein and the claim denied in its entirety.