NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
(1) That the Carrier violated the Agreement in effect between itself and the Brotherhood of Maintenance of Way Employes by assigning work of painting the interior of tool rooms and check rooms in the machine and boiler shops at Paducah, Kentucky, to employes in the mechanical Department during the month of February 1942:
(2) That Bridge and Building Painters C. B. Prince and Roy Yates, laid off in force reduction while this paint work was being performed by employes of another department, be paid at B&B painter's rate, 8 hours per day, on days tabulated as follows:
EMPLOYES' STATEMENT OF FACTS: During the period from February 2nd to 18th, 1942, the Carrier assigned employes of the Mechanical Department to the painting of interior of tool rooms and check rooms in the machine and boiler shops at Paducah, Kentucky.
While the Mechanical Department employes were performing this work of painting, the claimants, C. B. Prince and Roy Yates, regular B&B painters, were out of work by reason of force reduction.
The Agreement in effect between the Carrier and the Brotherhood is by reference made a part of this Statement of Facts.
POSITION OF EMPLOYES: The Scope of the Agreement in effect between the Carrier and the Brotherhood of Maintenance of Way Employes reads:
OPINION OF BOARD: In February, 1942, the interior of the tool rooms and check rooms in the Machine and Boiler Shop of the Carrier at Paducah, Kentucky, was painted by employes covered by the Shop Crafts Agreement. The Carrier describes the Machine and Boiler Shop as being 681' x 245' in size, with bay from 38' to 58' in height. In the approximate center of this building there is an enclosure 80' x 17', 10' in height, made up of counter, racks and bins supported by steel posts (fastened to wood block flooring) to which wire mesh is attached. This enclosure was installed after the building itself had been completed and is not attached to walls, ceiling or roof supports of the machine shop building. From this description that part of the building in dispute is not movable and it is, therefore, a permanent part of the machine shop building.
The employes rely upon the Scope Rule and a memorandum agreement dated February 11, 1938. The Scope Rule reads:
Painters are not listed in the exceptions mentioned in the rule and are covered by the Scope provisions just quoted. See Award No. 2812.
This Board is of the opinion that the above-quoted letter of the Carrier and its acceptance by the Organization is an agreement not only as to the claims in dispute, but also an agreement as to future work. It definitely gives the work in dispute to employes covered by the Maintenance of Way Agreement.
Since the opening of these shops, the Carrier cites six instances when these enclosures have been painted by employes represented by the Shop Crafts employes, and for this reason contends this claim should be denied. This Board has repeatedly held that past practice cannot supercede the plain provisions of a contract between the parties.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and