for the additional reason that no claimant is named by the employes and that Carrier, therefore, does not know for whom such payment is claimed. For your Honorable Board to award retroactive payments to unknown persons would be highly prejudicial to the rights of Carrier.

Carrier respectfully requests that for the reasons given the claim of employes should be denied.

Carrier certifies that all matters referred to in its submission have been made a part of negotiations for settlement of the dispute on the property.

(Exhibit not reproduced).

OPINION OF BOARD: The question to be resolved is whether or not the Carrier has, as the Union alleges, acted in contravention of the existing agreement in relation to the Classification of Cooks.

The Organization alleges that the Carrier has refused to recognize that an employe performing the cook's duties comes within the Scope of the Agreement and has, in the instant case, through the execution and performance of a "Third arty Contract" improperly refused to permit certain individuals to establish and accumulate seniority in accordance with contract provisions.

The Carrier has, by a long established practice, existing over 40 years, provided cooks for xtra Road Gangs (such a group being here involved) through a contractual arrangement with a third party, by virtue of which, no cooks have been employed and paid by Carrier, who were assigned to camp cars used in the service of Extra Gang Crews.

It is further asserted by the Carrier that the service so performed was in behalf of the holder of the Third Party Contract (Unaka Stores, Inc.) in view of which it was impossible for the individuals in question to initially establish, or subsequently accumulate, seniority under the agreement which governs the relations of the parties hereto. Article 5(a) and Appendix A of the effective agreement establish the classification of Cook and indicate the monthly salary and equivalent hourly overtime rate therefor.

Article 2(a) provides the manner, and sets out the conditions under which seniority is established for this classification of employes. Article 9(c)-

"In camp cars, when there are six (8) or more men in a gang, a cook but not food supplies will be furnished at the expense of the company."

clearly states that under specified conditions cooks will be assigned to camp cars at no expense to the employes which make up the crews thereof.

This Board has previously held that:

"The mutual continuance of a practice after the negotiation of an agreement eliminating it, does not have the effect of changing the agreement. The provisions of the agreement supersede practices incompatible therewith. The acquiescence of the employes in the continuance of the practice after the contract became effective, has the effect of estopping the parties from the collection of retroactive penalties resulting therefrom. It does not estop either party from enforcing the contract and the collection of penalties accruing after demand for compliance has been made. See Awards 4281, 3979, 3503, 2137."

Facts of record disclose that the Organization made demand of the Carrier for compliance of contract provisions relating to the inclusion of, and the establishment of seniority for employes performing the duties of cooks for camp car crews on June 12, 1950.

It is clear that the existence of the third party contract with Unaka Stores, Inc., did not relieve the company of their duty and responsibility to make effective the provisions of the agreement governing the relations of the parties hereto upon demand by the Organization.

Awards of this Division have uniformly held that work of a class covered by the agreement belong to employes coming under the agreement.

Employes of the Unaka Stores, Inc., or other employes performing cook's duties, should have then and there, on June 12, 1950, become employes of the Carrier, within the scope of the effective agreement.

The question as to what extent, if any, employes of the Unaka Stores, Inc., who performed the service, required under Article 9(c), will be granted seniority within the Classification of Cooks, is remanded to the parties for disposition.

The monetary relief sought by the Organization in part (2) of the claim cannot be granted since there is no evidence of record as to what extent, if any, the wages paid by Unaka Stores, Inc., for the work contemplated by Article 9(c), varied with the contractual rate established for the classification.

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 the agreement was violated to the extent indicated.

AWARD