This provision contemplates that such suits "shall proceed in all respects us other civil suits" with the exception that the findings of the Adjustment Board as to the stated facts will be accepted as prima facie evidence thereof. It is clear that this provision contemplates the application of the same rule ~of damages and the same rule against penalties in enforcing contracts as are applied in civil suits generally. An award contrary to these principles would be unenforceable as a matter of law. It is respectfully submitted that your Honorable Board may not properly enter such an award.

III. Under The Railway Labor Act, The National Railroad Adjustment Board, Third Division, Is Required To Give Effect To The Said Agreement And To Decide The Present Dispute In Accordance Therewith.

It is respectfully submitted that the National Railroad Adjustment Board, Third Division, is required by the Railway Labor Act to give effect to the said Agreement, which constitutes the applicable Agreement between the parties and to decide the present dispute in accordance therewith.

The Railway Labor Act, in Section 3, First, subsection (i), confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreement between the parties hereto. To grant the claim of the Employes in this case would require the Board to disregard the Agreement between the parties and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take any such action.

CONCLUSION

The Carrier has established that there has been no violation of the applicable Agreement in the instant case and that the Claimant is not entitled to the compensation which he claims.

Therefore, the Carrier respectfully submits that your Honorable Board should deny the claim of the Employes in this matter.

(Exhibits not reproduced.)

OPINION OF BOARD: Does the assigning of the work of handling baggage and mail to and from passenger trains to four classifications of employes covered by the Clerks' Agreement place that work within the scope of the agreement and ipso facto constitute a recognition by Carrier that such work accrues exclusively to clerical employes of the four classifications?

We hold it does not.

At Columbus, Indiana the third trick block operator who is covered by the Telegraphers' Agreement has handled baggage and mail on and off a daily train for a period in excess of thirty-two years prior to this dispute. This period antedates the Clerks' Agreement by seventeen years. No clerical employes have ever been assigned to handle baggage and mail on third trick at this station.

With this position we cannot agree,

The Scope Rule insofar as is here pertinent provides:

"These Rules shall constitute an Agreement between the Pennsylvania Railroad Company and its employes of the classifications herein set forth as represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, and shall govern the hours of service, working conditions, and rates of pay of the following positions and employes of The Pennsylvania Railroad Company, subject to such modifications and exceptions as are set forth in Supplemental Agreement A:

Group 2-Other Office, Station and Storehouse Employes of the following Classifications:

Mail Handlers

# # # # #

Station Baggagemen

Truckers-Freight or Baggage

» # # » #

Warehousemen"

Being general in nature the obligation then devolves on the Claimant to establish by custom and practice that this work has exclusively been performed by employes of his craft before his position can be sustained.

The record indicates that aside from the practice at this location there are a number of non clerical positions on this property which also customarily perform this work.

Claimant has not met his burden of establishing exclusivity of this work and this basis as support for the claim we conclude is wanting.

Nor do we believe Rule 4-A-6 supports Claimant's position. We have read the five sub positions thereof and, without setting them forth at length we do not find they lend themselves to an interpretation favorable to Claimant.

With regard to the statement of the Claimant included in the Organization's Submission relative to the work he did during the third trick and without deciding the question raised by Carrier that it constitutes a claim not instituted on the property it does not affect the conclusion we have reached. Assuming arguendo that it is properly a part of the record Carrier's denial

That the parties waived oral hearing;

That the Agreement was not violated.

AWARD Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary