tion and application of the Scope Rule of the parties. "The mere filing of a. claim in conflict with the Agreement is not enough." (First Division Award 9560.) "Such an interpretation by the responsible parties under the Agreement is subject to change only by Agreement and not by unilateral appeal to this Board." (Third Division Awards 6043 and 6159.)
The Carrier's position as set forth in this submission clearly proves there is no merit whatever to the Employes' claim in this case. In support of its position the Carrier cites the following additional Third Division Awards:
The Carrier desires to respectfully point out that the jurisdiction of the Third Division, National Railroad Adjustment Board, is limited to the matter of interpretation or application of Agreements and that such Division has no jurisdiction whatsoever to write any agreement or to read any non-existent rule into an agreement, which it would be doing if it sustained the instant claim.
It is the position of the Carrier that the Employes did not have exclusive rights to the work involved in the instant case, and also that it was not a violation of the Brotherhood of Maintenance of Way Employes' Agreement for the Carrier to have such work performed by contractors.
All material used in this submission was presented to or was known by the Employes while this claim was being progressed on the property.
OPINION OF BOARD: At the outset, it is necessary to consider two procedural questions first raised by Petitioner in its rebuttal submission. Petitioner contends that:
Under item (a), Petitioner argues that Carrier's Exhibits B and C may not be considered because the issue of past practice was raised for the first time in Carrier's Ex Parte Submission. Carrier's Exhibit B is a stenographic report of a conference had on June 16, 1941, on the issue of past practice 12075-22 1007
with respect to contracting out of maintenance of way work. It is signed by the representatives of the Carrier and Petitioner and it interprets the meaning and intent of the Scope Rule of the Agreement. Since the Agreement is before us, interpretations agreed to by the parties are part of that Agreement, and may be properly presented in the record at any stage of the outlined procedures. In its Ex Porte Submission, Petitioner agreed that interpretations of the Agreement are before the Board when it said:
Exhibit C lists dates and places when Carrier contracted for maintenance of way work. This refers to and substantiates the Agreement interpretation in Exhibit B. We find that there is no merit to the contention that Carrier presented "issues and holdings not presented in the handling of the claim on the property."
Under (b), Petitioner argues that Carrier gave no reasons for the disallowance of the claim as required in Section 1(a) of Article V of the National Agreement dated August 21, 1954. In a letter dated September 16, 1958, Petitioner wrote Carrier's Supervisor that "Carrier has engaged and assigned outside contractors to perform Bridge and Building work on this property." Carrier replied on November 4, 1958, as follows:
After more correspondence between the parties along similar lines, a conference was held on January 6, 1959. On January 16, 1959, Carrier wrote Petitioner, in part, as follows:
On the basis of Petitioner's presentation of the claim on the property, Carrier's disallowance of the claim was within the requirements of Section 1(a) of Article V of the National Agreement of August 21, 1954.
The Scope Rule of the Agreement does not define the work to be performed by the employes listed therein. It is a well established principle of this Division of the Board "that where the Scope Rule only lists the employes or the job classifications and not their work, it is necessary to determine whether the work claimed is historically and customarily performed by such employes." Awards 11525, 11784, 11831, 11832, 11128, 10931 and many others.
The record conclusively shows that the type of work involved in this claim was not historically and customarily performed exclusively by Claimants and 12075-23 1008
employes covered by the Agreement. It shows that over the years Carrier had contracted for the performance of similar work. The mere fact that maintenance of way employes had, on some occasions, done such work does not establish the fact that such work was historically and customarily performed exclusively by such employes. Petitioner has failed to meet the burden of proof.
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