Positions within the scope of this agreement belong to the employes covered thereby and nothing in this agreement shall be construed to permit the removal of positions from the application of these rules, except in the manner provided in Rule 64.

This agreement shall not apply to individuals where amounts of less than Thirty ($30) Dollars per month are paid for special service which takes only a portion of their time from outside employment or business, or to individuals performing personal service not a part of the duty of the carrier."

There is nothing in this rule which places the work of operating the apron at 25th Street Freight Slip in the Clerks' Agreement.

There is absolutely no clerical work required at 25th Street Slip. The primary purpose of the patrolmen is to protect the Carrier's slip and other property. It is only a matter of a few minutes work, whenever a barge arrives at, or departs from, the slip to raise or lower the apron by manually turning a crank. The record clearly shows that during the entire history of this railroad the work has been done by men who are nothing more nor less than patrolmen. The settlement shown in Carrier's Exhibit "A" proves this beyond any doubt. James Mulcare, whose name appears on Sheet 3 of Exhibit "A" had been continuously on that job since December 1, 1909. Carrier's Exhibit "A", which bears the signature of the General Chairman of the Brotherhood of Railway Clerks is evidence of the fact that the Organization recognizes these employes as patrolmen. As shown by General Chairman McCarthy's letter of January 2, 1946, the Brotherhood of Railway Clerks released all right to represent that class of employes.

Mr. McCarthy's letter of April 29, 1947, contains the first mention of a claim for monetary settlement and was not handled during the progress of this dispute on the property.

SUMMARY: Carrier contends that the claim of the employes should be denied for the following reasons:

(1) The work of operating the apron at 25th Street Freight Slip is not within the Scope of the Agreement.

(2) For more than 36 years, until the instant dispute, the right of patrolmen to perform this work was recognized.

(Exhibits not reproduced.)

OPINION OF BOARD: While the essential facts in this case are contained in statements by the Employes and the Carrier, we deem it advisable for the purposes of this opinion to restate them in as nearly chronological order as possible.

Prior to December 15, 1943, three men who are now classed as patrolmen were assigned to positions at the San Francisco Freight Slip of the Carrier and were carried on a seniority roster of July 1921 under the jurisdiction of the Clerks. At that time they were designated as "Boat Tenders". A later seniority roster still under the jurisdiction of the Clerks, dated January 1, 1922, shows the same employes as being designated as "Slip Watchman". The record is somewhat nebulous with respect to the continuous designation of the three men assigned to the aforementioned positions until the date of December 15, 1943, but it does reveal that in a wage agreement of 1926 and 1927 between the Carrier and Petitioner, the men in these positions were designated as patrolmen, and in a collective agreement effective October 1, 1930, according to the Employes they were shown as "station and warehouse watchmen", and held seniority rights in District 14, Department of Chief Special Agent-Police Department. (According to Carrier's Statement of Facts, and not contradicted by the Employes, with the formation of a regular police department in April 1922, no regular police department having been formally established prior thereto, all patrolmen, irrespective of title, were transferred to the payroll of the Chief Special Agent's Department and have been continuously carried on said payroll.) As of February 1,

1931, at least one of the employes was designated as a patrolman on the roster of Chief Special Agent and it is assumed by the Employes' General Chairman that subsequent to January 1, 1922, the three men assigned to the positions at the San Francisco Freight Slip were designated as patrolmen. In any event there is no question but that from April 1922, the three employes assigned to the three positions in question were carried on the roster of the Chief Special Agent and it seems clear that since that time their designation was patrolmen.

Part of the duties of the three men assigned to the positions at the San Francisco Freight Slip, and designated variously as gboat tenders", "slip watchmen", "station and warehouse watchmen", and "patrolmen" was and presently is to raise and lower the apron at the Slip. The employes in the three positions in question at the San Francisco Freight Slip were represented by Petitioner until December 16, 1943, when the Clerks waived the right to represent patrolmen.

The Employes contend that the work of raising and lowering the apron has always been performed by employes covered by the Clerks' Agreement until the effective date of the current agreement, December 1.6, 1943, that although it waived its right to represent patrolmen, it did not waive its right to work historically within the Clerks' Agreemen, and points out that the same type of work at Oakland Mole across the San Francisco Bay has likewise always been performed by employes within the scope and operation of the Clerks' Agreement and is presently being performed by such employes. On this basis it is reasoned that in view of consistent holdings of this Division that work once within the scope and operation of collective agreements can only be removed therefrom by agreement of the parties, the work of raising and lowering the apron at the freight station still belongs within the scope of the Clerks' Agreement.

A study of Rule 1, Scope Rule, upon which the Employes rely does not reveal any specific designation of work as such. The Scope Rule indicates only the classes of employes to whom it applies. Work, of course, is an attribute of a position or class of employes, as has been stated in many opinions of this Board.

In December of 1943 when the Clerks relinquished jurisdiction over patrolmen, this work at the San Francisco Freight Slip was an attribute of the position of the three patrolmen stationed there. This then would leave room for some inference (not necessarily conclusive) that when the Clerks relinquished jurisdiction over patrolmen they relinquished jurisdiction over work being performed by them, particularly if no reservation as to the work were made. But the record goes further than just the bare relinquishment of patrolmen from the jurisdiction of the Clerks' Agreement. Quoting from a letter of the Clerks' General Chairman to the Carrier's Vice President, we find the following language:

"The work of patrolmen continued under the coverage of the Clerks' Agreement until December 15, 1943, when it was conceded by this Brotherhood that the work of patrolman as presently performed on this carrier does not fall within the scope of the Clerks' Agreement." (Emphasis supplied).

Now, this work at the San Francisco Freight Station was being performed by these three patrolmen since 1927 so the Chairman must be presumed to have known the nature thereof when this concession was made. It is axiomatic that this Board will not make agreements for the parties; nor will it unmake them. In this instance it appears that the parties did make an agreement in December 1943, the effect of which was to remove the work of raising and lowering the apron at the San Francisco Freight Slip from the scope of the Clerks' Agreement. The fact that the work of raising an apron at Oakland Mole is performed by employes covered by the Clerks' Agreement at the present time is not controlling. Work cannot be mathematically apportioned. There is bound to be some overlapping in the duties

That the Carrier did not violate the Agreement.

AWARD Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division