This case was identified on the property as Case No. 5.

The Agreement in effect between the two parties to this dispute dated April 1, 1951, together with supplements, amendments and interpretations thereto is by reference made a part of this Statement of Facts.

CARRIER'S STATEMENT OF FACTS: The claim in this case alleges a violation of the agreement between this Carrier and its employes represented by the Brotherhood of Maintenance of Way Employes when " * * * (the Carrier) assigned other than B&B forces to install a new roof on the Power House at Riverside, Baltimore Terminal during the week of April 10 to 16, 1960, * * *."

The claim also asks that "* * * B&B employes Roland Purcell and Rubin M. Stockman each be allowed five days' (40) hours pay at their respective straight-time rates * * *."

The facts in this case are as follows:

In April 1960 it was found necesssary to install a corrugated metal roof on the Power House at Riverside Roundhouse in Baltimore Terminal. This roof was approximately 20 x 30 feet in size.

In the past work of this nature in Baltimore had been handled by water station forces working under the provisions of the Sheet Metal Workers' Special Rules appearing in the agreement between this Carrier and its employes represented by System Federation No. 30 RED (Shop Crafts).

In accordance with this standing practice in Baltimore Terminal these forces were assigned to, and performed, the work made basis of claim in this case.

In handling this case on the property of this Carrier the Committee representing the Brotherhood of Maintenance of Way Employes was unable to cite this Carrier to any rule appearing in its agreement that would give work of this kind by some exclusive reservation to employes coming under the scope of the BMWE Agreement.

OPINION OF BOARD: This dispute involves Carrier's assignment of Water Station forces, who hold no seniority under the Maintenance of Way Agreement to install a new corrugated metal roof on the Power House at the Riverside Roundhouse in the Baltimore Terminal.

It is the contention of the Organization that the work should have been performed by employes who are part of the Bridge and Building forces in the Maintenance of Way Department for two reasons:

(1) the work is specifically reserved to the above employes as spelled: out in the current contract between the parties;

(2) the work in question does not fall within the specific exceptions of the Scope Rule and in support of its position the Petitioner calls particular attention to the said Rule, Section 1 (c), which, in pertinent part states as follows:

"Bridge, Building and Structural Work.

Carpentry, painting, glazing, timing, roofing, . . . required in the construction and maintenance of railroad structures, other than tunnels, shall be performed by B&B forces . . . . " (Emphasis ours.)

The burden of the Carrier's position can be summarized as follows:

(1) Carrier raised a question that goes to the Board's authority to determine the issue on the merits claiming that the Sheet Metal Workers are involved in this dispute and pointing out that they were neither notified of the pendency of the instant dispute nor did they participate in the processing of the grievance on the property.

(2) On the merits the Carrier claims there is no rule appearing in the Maintenance of Way Agreement, neither the "Scope Rule" nor Rule 1 which would operate to support the instant claim.

(3) There is no exclusive reservation of any work of this kind to employes in the B&B forces.

(4) By custom and long practice the work in question has been performed by water station forces in the Maintenance of Way Department.

The Carrier's threshold question concerning jurisdiction is without merit since the record contains a letter from the Sheet Metal Workers International Association, dated March 9, 1965 in which the said Organization's General Vice President, Mr. J. W. O'Brien, acknowledged receipt of notice of the pendency of the dispute and disclaiming any interest in the proceeding.

On the merits it appears that the Petitioner makes a compelling argument in support of its position. In the first place the Agreement in the Scope Rule Section 1 (c) quoted supra explicitly sets forth that ". . . tinning and roofing . . . required in the construction and maintenance of railroad structures . . . shall be performed by B&B forces . . ." Not only is this language clear and unequivocal but it also contains the word "shall" which is mandatory and not permissive. Furthermore the Carrier appears to place heavy reliance on what it calls an unchallenged and long continuing past practice which not only destroys the notion of exclusivity but allegedly denotes the Organization's acceptance, without protest, of the propriety of the Carrier's assignment of the work in question to the Sheet Metal Workers Union. This contention is challenged by the Organization on the record.

In the opinion of the Board this conflict in the position of the parties not only cannot be resolved by this Board on the present state of the record but need not be reached to arrive at a resolution of the instant dispute.

The only situation where evidence of a past practice is admissible is to explain away ambiguity in a contract. If there is no uncertainty as to the intention of the parties to be found in the controlling language in the contract then evidence of past practice, no matter how long continued, is not germane to the issue. In the case at bar the language quoted supra is clear, explicit, and mandatory: the work belonged to and should have been assigned to the employes on whose behalf the instant claim was filed. It would not appear that there can be any question as to the meaning of the words "tinning and roofing" required in the installation of a new corrugated metal roof on the Power House at the Riverside Roundhouse in the Baltimore Terminal. Evidence of past practice is not admissible to vary or controvert the express written terms of a contract.

It would also appear that those portions of the Carrier's argument which relate to the exception set forth in Scope Rule (b) (4) which excludes from the coverage of the instant Agreement "Employes, as of the effective date of this agreement, covered by agreements with other Labor Organizations" are not apposite to the instant case. The General Vice President of the Sheet Metal Workers Association in his letter dated March 9, 1965 expressly disavowed any interest in the instant proceeding.

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 Carrier violated its Agreement.

AWARD