"In these circumstances the established practice must be deemed to reflect the intent and understanding of the parties. There is no basis for finding a violation of the existing agreement; if relief is considered necessary, it must be secured through the process of negotiation."

Second Division Award 1122 (Sidney St. F. Thaxter, Referee):

"* · " This Board cannot make or amend a rule. It is bound by the agreement which the parties have made * * *"

"To recognize this dispute from a jurisdictional standpoint would, in my humble judgment, open the door to future disputes which, under the cloak of a grievance, are in truth and fact working condition problems which are not governed by rules or contracts, and thus permit the Adjustment Board to supersede the functions and duties of the Mediation Board."

Third Division Award 1102 (I. L. Sharfman, Referee)

"Since the parties themselves failed of agreement to change the rule as theretofore understood and applied, it is not the function of this Board, in passing upon a claim first submitted ten years later, to effect virtually the same change in the rule through a process of interpretation."

Third Division Award 1290 (Herbert B. Rudolph, Referee)

"It has further been the constant holding of this Board that it cannot make a new agreement for the parties so as to include positions not covered in the agreement the parties themselves have made." Third Division Award 1687 (Sidney St. F. Thaxter, Referee) :

"It is apparent, therefore, that what this board is asked to do is to frame a rule which may apply to situations which may arise in the future not only with respect to this employe but with respect to all others similarly situated. It has been repeatedly held that this Board has no authority to make rules. Its function is to interpret them and apply them to the facts of particular cases."

Third Division Award 2132 (Sidney St. F. Thaxter, Referee)

"* * * It seems to us, however, that it is not advisable, even to reach a result which might appear equitable, to attempt to read into a rule something which is not there. The weight of authority, as well as sound reason, supports this principle."

Third Division Award 2612 (Curtis G. Shake, Referee)

"The problem with which we are here dealing is peculiarly a matter of contract between the organization and the carrier. We do not find the terms of the contract indefinite, uncertain or ambiguous; on the contrary, these are clear and positive. It follows that any change of policy must be brought about by negotiation. It is not within our jurisdiction to make contracts for the parties."

Claim should be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: This case comes before this Board on an agreed statement of facts. Insofar as material to a disposition of this controversy, the facts appear to be as follows: Prior to 1932, Carrier at its South Claiborne Avenue Crossing employed six crossing watchmen in around-the-clock service, three to protect the east lane and three to protect the west lane. It also

employed two switchtenders on the east side to handle two hand-operated switches approximately 100 feet south of the eastbound thoroughfare traffic lane. On August 16. 1932, two switchtenders on the east side of South Claiborne Avenue were required to flag the crossing and the crossing watchmen on two shifts were removed. In march 1943 the third shift crossing watchman was removed and replaced by a switchtender. In November 1947, mechanism was installed in the watchman's shanty on the east side of South Claiborne Avenue, controlling the gates on both sides of the Avenue, and mechanically operating the two crossover switches. J. H. Nillen and J. S. Burke, former switchtenders who were each incapacitated as the result of the amputation of a leg on November 26, 1920 and on May 31, 1935, respectively, were continued in service as crossing watchmen and eventually assigned to this crossing. When it became necessary to reinstate the use of the crossover switches, they were assigned to that operation in addition to flagging the crossing, paid at the switchtender's rate and carried on that roster. When the reduction in force took place, as a result of the mechanical improvements completed November 1947, Claimant Balsamo, an able-bodied employe, holding seniority on the Highway and Street Crossing Watchmen & Gatemen's roster, sought to displace either Nillen or Burke, but his request teas denied. Employes file claim as indicated. Carrier bases its defense to the action taken upon Rule 24 of the Agreement (quoted below). Employes assert that Rule 24 has no bearing on this matter, their claim being that the Scope Rule of the Agreement is being violated by permitting switchmen to perform services as highway crossing watchmen.

"Rule 24. The general rule of promotion and seniority will not apply to positions of track, bridge, tunnel and highway crossing watchmen and watchmen, gatemen or signalmen at non-interlocked railway crossings, but such positions may be filled by incapacitated employes from any department, and preference in filling and retaining these positions will be determined by the degree to which incapacitated for other work. Seniority in the service of the railroad and ability to perform the work to govern; maintenance of way employes will be given preference."

Rule 24 of the Agreement serves a very laudable purpose. Its humanitarian aspect cannot be doubted and consequently it should be viewed in the light of its obvious purpose, to wit: to provide work for incapacitated employes who are unable to perform the duties of their regular positions. In the instant case, despite their obvious physical handicaps and their obvious inability to perform certain types of manual labor, Messrs. Nillen and Burke are assigned to tending switches, are carried on the Switchtender's roster and are paid at the rate of that classification. There is no doubt that watchmen, gatemen, and signalmen are positions attaching to the Maintenance of Way and Structures Department and employes in that classification hold seniority under the Maintenance of Way Agreement. Rule 24, however, permits the filling of such positions by incapacitated employes from any department without regard to seniority. It is, of course, clear that the guiding factor in determining appointment is the degree to which incapacitated for other work. Seniority in the service of the railroad and ability to perform the work are also to be given consideration. Obviously, Nillen and Burke are not incapacitated for other work as the facts appear in this Docket, for they are performing the work of switchtenders. Clearly, then the question involved in this docket is not the interpretation and application of Rule 24 but rather whether or not the Scope of the Maintenance of Way Agreement is being violated by assigning switchtenders to the duties of crossing flagmen.

From the statement of facts above appearing, there is an indication that before 1932 the Carrier apparently recognized the separability of the duties of switchtenders and crossing flagmen for it did maintain two switchtendem at the crossing in addition to the crossing flagmen. On the other hand, for a period of seventeen years off and on, the Organization acquiesced in the assignment of the work to switchtenders. The Agreement under the Scope and Seniority rule clearly includes positions of watchmen, and gatemen and signalmen at non-interlocked railway crossings. There is a seniority roster maintained for employes in such service. Of course, such seniority rights as

they may have among themselves are subordinated to the rights of Incapacitated employes under Rule 24. Rule 24 in itself is a clear indication that the work of track, bridge, tunnel and highway crossing watchmen, etc., comes within the Scope of the Agreement, for if it were not covered, there would be no need to agree upon an exception to the general rule of promotion and seniority in appointment to the positions performing such work. It appears, therefore, that the Agreement clearly contemplates the inclusion of the work as performed under the circumstances appearing in this Docket, in its Scope. That being so, the long acquiescence of the Employes in the assignment of work to employes outside of the Agreement cannot defeat a claim that the Agreement is being violated, Under numerous Awards of this Division such a long period of acquiescence, however has been held to be a bar to a claim for compensation beyond the date of protest to the Carrier by the Organization.

It follows from the above that Claim (1) should be sustained. As to Claims (2), (3) and (4) it is within the Carrier's discretion as to the method it employs to correct the Agreement violation. We do not have the authority to direct the establishment or restoration of positions in cases such as this. Any wage loss suffered by the employes mentioned in items (2) and (3) of the claim should be paid from the date of protest to the Carrier to the date that the Agreement violation is corrected.

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

That Carrier violated the Agreement.

AWARD