is corrected by returning this work to a position covered by the Clerks' Agreement.

That all losses sustained by all employes affected or who may become affected at Monroe, North Carolina, be paid for August 20, 1951, and subsequent thereto, until the violation is corrected.

(5) That Clerk C. R. Virnelson and/or his successor(s) at Savannah, Georgia, be compensated for eight hours at the time and one-half rate of his position for October 25, 1951, and subsequent thereto, until this work is returned to an employe covered by the Clerks' Agreement.

(6) That Clerk J. D. Burfoot and/or his successor(s) at Jacksonville, Florida, he compensated for four hours at the time and one-half of his position, plus subsequent general wage increases, for January 7 1952, and the same number of hours for each working day subsequent thereto, until the violation is corrected by returning the work to an employe covered by the Clerks' Agreement.

That all employee adversely affected at Jacksonville, Florida, be compensated for all losses sustained account of this violation for January 7, 1951, and subsequent thereto, until the violation is corrected.

EMPLOYES' STATEMENT OF FACTS: Several days prior to August 18, 1951, the following letter was sent to the AAR Clerks at Richmond, Virginia; Hamlet, North Carolina; Monroe, North Carolina; Savannah, Georgia and Jacksonville, Florida, by their superiors,

"Effective August 18, 1951 you will discontinue going to the car for the purpose of performing A.A.R. write-up repair card work."

This was a duty which had been assigned to and performed by AAR Clerks for years. This required the AAR Clerk to go to the car in the repair yard and write the original record of material used in making the repairs as well as the labor hours required to perform the work. Such was in accordance with the provisions of Rule 7 of the Code of Rules governing the condition of, and repairs to freight and passenger cars adopted by the Association of Aerican Railroads, which states:

"When repairs are made to a foreign car (except as otherwise provided in Rule 108), or to any car on the authority of a defect card, the original record of repairs shall be written at the car on billing repair card, · · ":"

The above quoted letter evidences the fact that this duty was assigned to and performed by Claimants. In advertising these positions for bid the duties shown on the bulletins would require the applicant to be familiar with the AAR Code of Rules and write up of AAR repair bills, checking and recording cars on repair tracks.

Richmond (Hermitage), Virginia. Records indicate that this work was assigned to and performed by Clerks since 1941. On January 26, 1949, the Clerk who had occupied the AAR Clerk's position for approximately fifteen years vacated it and it was advertised for bid on Superintendent's bulletin 11 of that date showing as the duties thereon: "Writing up repairs to equipment." Claim is presently pending covering the performance of the advertised duties on Sundays, holidays and before and after assigned hours of the AAR Clerk's position by employes without the Scope of the Clerics' Agreement prior to August 18, 1951. Since that date these duties have been performed by foremen, supervisors and carmen.

Hamlet, North Carolina. This is a major car repair point and we quote the following letter to show just how and by whom this work was performed at that point.

OPINION OF BOARD: The locale of this dispute covers five locations, namely, Richmond, Virginia, Hamlet, North Carolina, Monroe, North Carolina, Savannah, Georgia, and Jacksonville, Florida. Claim is presented in behalf of named individuals, their successors, and others affected at each of the above named points. Reparations are sought for each allegedly affected to the extent of eight hours, punitive rate. The work involved concerns the preparation of "billing repair cards" by A. A. R. Clerks.

The Organization asserts that the work in question has, at the five locations in question, been assigned to and performed by A.A.R. Clerks for many years. It was pointed out that this condition or practice came into being prior to the execution of the effective agreement, said practice being in existence at Jacksonville, Florida in 1925, and at other points at later dates. It was asserted that this fact was admitted by the Carrier when prior to August 18, 1951 the claimants were notified that as of that date they were to discontinue going to the car for the purpose of performing write-up repair card work. It was further contended that Rule 7 of the Association of American Railroads required this work to be done at car side, and that this work having been in the past assigned to, and performed by A. A. R. Clerks; could not now be removed from their assignments and performed by Mechanical Department employes, not covered by the confronting agreement.

The Respondent denied that there existed a universal custom and practice relative to the performance of this work, pointing out that the Organization was alleging the existence of such practice at only five locations, while at 42 other points this work was being performed by others than clerks and that the effective agreement should be here interpreted on a system wide basis. It was asserted that the making out of the initial cars repair card was properly a function that could be performed by Mechanical employes incidentally with their other duties; with all subsequent handling thereof by Clerks. It was further asserted that the inclusion of this work in advertising the positions here involved was not indicative that the same (work) belonged to clerks to the exclusion of all other crafts. It was pointed out that the exclusive performance of this work would not result in the increase of clerical forces, that no existing position would be deprived of overtime by its (work) performance by other personnel than clerks; nor would such performance result in the abolishment of any clerical position.

Before considering this dispute on its merits, it is necessary to dispose of a Motion in this docket to the effect that action be withheld pending the giving of notice of hearing to the other parties involved.

In view of a number of awards of this Board and the decision of the Supreme Court of the United States in the case of Whitehouse vs. Illinois Central Railroad, and the finality of this matter (No. 131, October Term of U. S. Sup. Ct., 1954), followed by the dismissal of the cause of action by the United States District Court, the Board now has jurisdiction over the only necessary parties to this proceeding and over the subject matter hereof.

The confronting Scope Rule is ambiguous. It does not specifically enumerate the work encompassed thereby. This Board has held in numerous decisions that a determination must be made as to whether or not the work involved is of the type that has been ordinarily and traditionally performed by any particular craft, using as the criteria, past custom and practice, which can in the premises, indicate the parties interpretation and application of such rule.

It is noted that the Respondent asserts, without denial by the Organization, that Mechanical employes have performed this work at some 42 locations on the property. In this connection it is likewise noted that the Organization asserts that while this is true, preparation of the cards concerning repair work to foreign equipment, had, at the named major repair points, been continuously and historically performed by A.A.R. Clerks. Thus we are confronted with the question whether or not different customs and

practices, if found to exist at different points on a property can be said to properly exist at these points. We think that they can.

The facts of record are that A.A.R. Clerks have performed this work at the points in question for a number of years, dating back as far as 1925 at Jacksonville, Florida and slightly more recent dates at other points at issue. At Savannah, Georgia the work was returned to the A.R.A. Clerks upon protest as to its improper removal in 1946, 1949, and 1950. The record further indicates that numerous claims have been allowed where this work was involved at more than one of these locations.

The individual named in claim 6 above was likewise involved in the claim upon which Award 6298 was based. The identical work was likewise involved. Therein in the Respondent stated that it had been determined that claimant had in truth and in fact performed the work of preparing cards prior to July, 1949, and had issued instructions that such (overtime) work should in the future be returned to claimant to perform.

Thus we conclude that the work in question had, at the locations with which we are concerned, been placed within the scope of the controlling agreement and that it (work) belongs to the employes covered thereby.

The Respondent asserts that even though a violation exists claimants here are not entitled to reparations because no time was lost. The confronting claim was brought, in the main, to enforce the scope rule of the Agreement. In finding that the work was encompassed by the scope rule, reparations are justified. Otherwise the sanctity of the agreement cannot be maintained and violation thereof discouraged.

Having found that reparations are justified we note that same are sought at the punitive rate. This Board has on numerous occasions found that the pro-rata rate is all that is warranted where no work is performed. None was performed here, so only the pro-rata rate can be allowed.

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 in the above opinion.

AWARD