Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11467
 SECOND DIVISION Docket No. 11374
 88-2-86-2-181
 The Second Division consisted of the regular members and in
 addition Referee Marty E. Zusman when award was rendered.
 (Brotherhood Railway Carmen of the United States
 ( and Canada
 PARTIES TO DISPUTE:
 (Fruit Growers Express Company

 STATEMENT OF CLAIM:

 1. That the Fruit Growers Express Company violated the controlling agreement, specifically Rules 22 and 24, when they improperly removed Elmer C. Wolford from the 1985 Refrigeration Repairmen's Senority Roster.

 2. That accordingly, Carman E. C. Wolford's name be returned to the Mechanical Refrigeration Repairmen's Seniority Roster with the seniority date in that department September 1, 1967, which was his seniority date on that roster for the year 1984.

 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 employes 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.

In the instant case, Claimant bid on and was awarded a "preferred position" which was also "required to perform regular Carmen's duties ...." There is clear evidence that the Claimant had desired that position and such was posted with knowledge that he would be the successful applicant. In addition, it was known by the General Chairman that the Carrier's interpretation of Rule 24 (a) associated with that position would foster a dispute. When the Claimant was awarded the position, he would be removed from the Mechanical Refrigeration Seniority Roster. The Carrier stated that:
Form 1 Award No. 11467
 Page 2 Docket No. 11374
 88-2-86-2-181
 roster but will continue to be carried on other carmen _
 roster. That is FGE's position not withstanding that

Claimant was awarded the position and the Carrier removed him from the 1985 Seniority Roster as a Refrigeration Repairman. There is no probative evidence that Claimant was aware that this would occur. Claimant's letter of May 7, 1985 indicates that he was not aware. This is not refuted by the Carrier. The instant protest seeks his reinstatement on that Roster.

 The facts at bar indicate that the Organization and the Carrier disputed the proper application of Rule 24 which reads:















The Carrier maintains that it has been a consistent practice to hold that each of the named catergories is a distinct department which could by mutual consent be further subdivided. The Carrier holds that Mechanical Refrigeration is a department.

 The Organization maintains that Mechanical Refrigeration is a subdivision of the Carmen's seniority roster and not a department. The Organization also holds that the disputed position has historically been filled by a Mechanial Refrigeration Repairman who continued to hold seniority as a Mechanical Refrigeration Repairman. It also notes that the position was not listed as a separate department in the Agreement.
 Form 1 Award No. 11467
 Page 3 Docket No. 11374
 88-2-86-2-181

 The Board has carefully reviewed the Agreement, evidence of record and argument of the parties. By long established precedent, lines of argument which occur ex parte and were not argued on the property are not considered by this Board. The Board finds nothing in Rule 24 (a) which allows it to determine whether Mechanical Refrigeration is a distinct department as the Carrier argues or a subdivision as the Organization argues. Given the ambiguity, the Board turns for a review of past practice to determine the intent of the parties.

 The Organization argues that the position has historically been "filled by a Mechanical Refrigeration Repairman who has always held seniority as such while on the Store Keeper's job." The Board's review of the probative evidence finds no clear refutation and as such it stands as fact. Although the Carrier's letter of July 15, 1985 states that there is "no such thing as a Storeroom Keeper's job at Burnham," the evidence of record indicates that said position is the same. As stated by Carrier letter of October 9, 1985, Claimant was denied retention of seniority "when he bid on the B.R.C. preferred position of Storeroom Keeper." The record stands to support the Organization's argument that said position has consistently for many years been appointed to an employee who was able to retain his seniority on the Mechanical Refrigeration roster. That Claimant was awarded by bid does not alter that effect as the position of B.R.C. Preferred and Storeroom Keeper are the same with no indication in the notice or record of any difference in duties, location or seniority.

 It is lastly important to note that while this Board finds the above record strong enough to sustain the Organization's position, both parties have proffered further evidence to support their positions. The Organization has included a letter of March 30, 1953 from the General Mechanical Superintendent to the General Chairman which states in pertinent part:

The Board notes that by Agreement language of Rule 24 (a), this letter is correspondence between those positions that by Agreement are given such decisional authority to interpret said Rule. The letter states agreement. It holds more weight than internal Organization letters proffered by the Carrier, which directly contradict.

 The Board sustains this claim where evidence supports that the BRC Preferred Position is the same as the Storeroom Keeper Position that has by past practice been performed by employees who did hold their Mechanical Refrigeration Repairmen seniority while working this specific position as per Rule 24 (a).
 Form 1 Award No. 11467
 Page 4 Docket No. 11374
 88-2-86-2-181




                              By Order of Second Division


Attest: dr-'4~- 0'~'A~
        Nancy J D er - Executive Secretary


Dated at Chicago, Illinois, this 20th day of April 1988.

 Naw

CARRIER MEMBERS'

DISSENT TO AWARD 11467

(DOCKET N0. 11374)

CONCURRING AND DISSENTING OPINION TO

AWARD 11468 (DOCKET N0. 11379)

(Referee Marty E. Zusman)


The Board exceeded its jurisdiction in rendering these Awards. Without any authority from the Railway Labor Act, the Majority has ruled that the parties were: in error in the way they drafted and structured their collectively bargained Agreement which was signed, executed and published. In lieu of considering a more. appropriate disposition, the Majority chose to determine how the Agreement ought to read and to penalize Fruit Growers Express Company on the ground that the Agreement does not read the way they thought it should. This is a fundamental departure from the Board's authority under the Act, which gives this Board the role of interpreting, not rewriting, agreements.
 Award 11468 particularly represents an ultra wires act. The Board is limited by the Railway Labor Act to interpretation and application of agreements as they are written. It is beyond the pale of any reasonable exercise of this statutory authority for the Board to reorganize the language and the form of the Agreement for the sole purpose of accommodating the speculations of one of the parties. The Board has no authority whatever to rewrite an agreement by shifting captions or deciding to adjust the placement of words in the text of an agreement to achieve a particular result. The agreement between the parties is always in evidence, and the rule the Board has consistently followed until these Awards, is that the Board must take the agreement as it finds it.
 The rearrangement of the parties' language is not even justified as an attempt at clarification. The Majority would have been well advised to heed the conclusions of Third Division Award 24423, as quoted in its Findings, and reject the
 Organization's invitation to rewrite the Agreement. It is interesting to note that no protest was filed when Rule 24 was published containing the alleged "printer error" or through various revisions and printings of the Agreement.
 Moreover, moving the caption does not render the provision "clear." The Rule was as clear with the caption where the parties to the Agreement placed it as it became after the Majority rewrote the Rule by moving it. The obvious difference is that leaving the Rule as the Board found it would have required a denial of the .claims.
 One example will illustrate the confusion, rather than clarity, that the Majority's rewrite of the Rule would cause. The Majority's revision of the Rule attempts to elevate "Junior Mechanics, Helpers and Laborers" to the status of a Department. During progression of Docket 11379 on the property the Organization's General Chairman stated in his December 18, 1985 appeal addressed to the Vice President Operations:

    "Although we are not fully convinced that Mr. Nelson is correct in

    placing Junior Mechanics, Material Deliverymen (Helpers), and

    Laborers as separate departments, we are in full agreement that they

    should be carried on separate seniority rosters with no rights to bid

    on Mechanic's positions." (Emphasis added)

Similarly, the Majority's action would lead to the removal of "Other Carmen" as a Department. Yet, that is the roster where most of the Carmen are listed, including the Claimant in Award 11468. The Organization's representatives have recognized "Other Carmen" as a Department for over 30 years.
 The Board has exceeded its authority by rewriting the parties' Agreement. That problem is compounded because those efforts disregard a relationship and an interpretation of the Agreement that have been in place for many years. The Majority's action improperly resolves the issue and serves only to create new problems for all concerned.
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The applicable provision in Rule 24(a) which is quoted in both decisions states in part:

        "Seniority of employees should be determined by length of service in one of the following departments..."

There has been a separate roster for Mechanical Refrigeration Repairmen ("MRR") for decades. Service earns seniority which is evidenced by the position of employees' names on a departmental roster. Such rosters are evidence of the existence of various departments under the Rule.
 This inseparable relationship between a department and the separate rosters maintained on the Company's property under the Rule has been recognized consistently. In fact, even the Statement of Claim in Award 11467 requests restoration to the Mechanical Refrigeration Repairmen's roster, with a specified seniority date "...in that department." (Emphasis added). In handling the claim that led to Award 11467 on the property, the General Chairman also stated that the Organization was seeking a seniority date in the MRR Department.
 The record also contained an illustration of the long history of departmental seniority and the agreed upon practice of maintaining separate rosters for each. For example, the record contains a "Paint Department" roster listing 13 painters. The Company could hardly ignore the rights of the employees on that roster when assigning painter work. The painters' roster is the source of seniority for painters, just as the MRR roster recognizes MRR seniority. The Majority's decision simply eliminates the rights of employees on those rosters to specialized work. If that had been the parties' intention, it is difficult to imagine why they would have taken the trouble over all these years to keep separate rosters for painters, MRR or any other skilled employees.
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The system agreed upon by the parties in their Agreement recognizes the unique organization of the work of the Carmen's craft on this Company's property. The separation of the listed departments required accumulation of experience or training before an employee could move into one of those departments.
 The effect of these Awards will be an effort to force the Company when furloughing any employees, no matter what type of work on the property has been reduced, to lay off employees who have worked and trained to acquire a needed skill such as MRR, painting, air brake, etc., who are on rosters covering these specialties. For example, as apparently happened in the situation leading to Award 11468, the volume of work in some departments at the Claimant's location declined. However, the volume of work for employees on the MRR roster did not decline. The Company furloughed employees not on that roster who lacked the skills required to meet the Company's needs at the time. This is the system the parties bargained for, and set out in their Agreement.
 On the other hand, the reasoning of the Majority and the new system they try to create in these Awards, contemplates retaining or calling other Carmen to positions who may never have done the work that requires particular skills, lack training to do it properly and whose experience has been in repair and maintenance of car bodies or other unrelated work. The new system the Majority seeks is unfair to employees who trained to acquire special skills (often on their own time) and even to those required to perform unfamiliar tasks with little or no experience. Finally, such changes interfere with the Company's right and ability to operate its business efficiently and without the need for putting unskilled people into positions when there is a ready force, and there is an Agreement in place that contemplates keeping a separate roster for that work force. The Majority's action completely disregards
                            - 5 -


both the scope of this Board's authority and the impact of their baseless decision on the Company's operations, and must be considered a nullity.
 Rule 24(a) is not a model of clarity. The Majority's decision gets around the clear evidence of past practice which should have guided their understanding of Rule 24(a) by rewriting the Agreement and shifting the caption. Once the Majority takes that extraordinary step, they are able to conclude that the strong evidence of practice in the record should have little or no bearing on the substantive aspect of the claims because the Agreement was now clear. This is an extraordinary result, which ignores this Board's rules for interpreting agreements in the light of past practice.
 The record reveals that the practice on the Carrier's property at least since: 1954 was to accord the status of a separate department to the Mechanical Refrigeration Repairman, at least with respect to the seniority issue. That practice was accepted by the Organization as early as 1954.
 It has been held that failure to protest a course of conduct under an agreement provision can deprive the claimant of the benefits of such neglect. This Board has consistently relied on a well-established rule of law generally applied in the interpretation or application of a labor agreement, namely, that custom or past practice may be used to determine the meaning of an agreement which on its face is ambiguous, doubtful or indefinite. This rule is based on the premise that, for the purpose of ascertaining the true intention of the parties to such an agreement, their consistent and long-continued actions or conduct might be even more important than what they say or do not say in the agreement.
 In the face of the consistent conduct of the parties and the record as a whole, the Organization failed to sustain its burden of proof in either case that Rule 24 was so clear as to justify disregarding the practice as to the substantive issues.
                            - 6 -


An objective reading of the language of the Rule as written, and a review of its application coupled with its history and evaluation as outlined in the record, reveals that Rule 24(a) was ambiguous before the Majority attempted to rewrite the Agreement. The Rule remains ambiguous. Accordingly, the long-standing practice as to the treatment of seniority of MRR employees should have controlled.
 Awards 11467 and 11468 purport to interpret the same Rule. Yet, those Awards contain various inconsistencies which suggest that both Awards are suspect.

 In Award 11467, the Majority found an ambiguity in Rule 24 and turned to past
 practice to interpret it. In Award 11468, the Majority found no ambiguity in the
 provision and rejected practice as a guide for its interpretation. The reason
 offered for the different reading of the same Rule is that in Award 11468 "...the
 Organization has provided more fundamental evidence...", identified as "...clear
 evidence from the July 1, 1945 printed Agreement that the Subdivision caption was
 printed in error over the wrong column." This is hardly persuasive. The identical moo
 Rule and identical evidence were also involved in the other claim where the
 provision was found to be ambiguous.
 Of course, this additional "evidence" is not "evidence" of anything. The Rule per se is "evidence" only of the fact that the parties agreed to adopt certain language. These claims involve interpretation of that language. The Majority ruled that an interpretation (based upon their own reconstruction of the provision) offered by one of the parties constitutes legal "evidence" to support its conclusion. The source of this pure conjecture was wishful thinking of the General Chairman in a letter of record. This not only suggests a naivete but a serious misconception of the Board's function.
 Furthermore, the Majority found in Award 11467 that "...nothing in Rule 24(a) ... allows it to determine whether Mechanical Refrigeration is a distinct department
 ... or a subdivision ...." This is difficult to reconcile with Award 11468. In reading the same Rule (albeit after changing it) the Majority exhibited no reluctance about its right to determine that the parties in Rule 24 clearly intended that "...Mechanical Refrigeration was and is a sub-division and not a department...", and that "...it is clear ... the parties intended that Mechanical Refrigeration was a sub-division."
 The parties to this Agreement have lived with their understanding of its meaning for nearly 35 years. Now, the Majority has decided to determine what the parties meant. There is no plausible reason for a body such as this Board, which the governing statute intended to be objective, to reformulate the parties' Agreement to reach a strained result and proceed to announce that the restructured Agreement constitutes legal "evidence" to support its erroneous conclusion. The Majority's assumption of the role of both advocate and judge in this context is even more troubling in light of the inconsistent ways the two supposedly related Awards interpret the same Rule. Such bizarre procedure strains the confidence of the parties' in the arbitration process.
 The Majority places much reliance on a March 30, 1953 letter. In Award 11467 the Majority finds: "The letter states agreement." This conclusion was reached, the Award notes, because the correspondence involved is between people in the Organization and the Company who had "...decisional authority to interpret said Rule ...." The fact is the letter is not an "agreement" in form or content. It contains no offer to change the basic Agreement and contains no evidence of acceptance which is essential and customary if it were intended to elevate the letter to the level of an agreement. The content of the letter merely recites an on-going disagreement between the parties on the issue of departments and subdivisions. It is outrageous that the Majority gave more weight to that letter,
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which does not in any sense reflect "agreement" of the parties, than to the Organization's own internal documents created after the 1953 letter. To the extent that the 1953 letter contains an opinion of a then-Carrier Superintendent, that "evidence" is superceded by later documents and by more than 30 years of practice on the property.
 This Board clearly ignored the Railway Labor Act and exceeded its jurisdiction by changing the applicable provision and disregarding the long and continuous past practice on the property. With the exception of the denial of any compensation in Award 11468, the two Awards are inconsistent and have no support under the facts, agreement provisions, practices, interpretations or precedent. They should have been denied in their entirety.

    We dissent.


                            M. C. Lesnik


                                      .. ,


                            M. W. Fingerhut


                              . L. Hicks

                            -~erlljloc~

                            P. V. Varga


                                        ,


                              . E. Yost V