Mr. J. T. Keyes, General Chairman Bro. of Maintenance of Way Employes 511 Pence Building Minneapolis, Minnesota

A B&B Department crew is also assigned with headquarters at Brainerd.

Two box car bodies are stationed adjacent to each other at the shops at Brainerd -one of these box car bodies is used for drying sand and the other box car body is used for storing sand. These two .box car bodies from dismantled cars were originally fitted up and placed in location in 1942 by carmen.

The car body used for storing sand became deteriorated, and Store Department employes with the use of a locomotive crane removed this car body from its foundation and transferred it to another location at Brainerd for destruction.

Box car NP 14923 was selected for placement at the site where the deteriorated car body had been removed and was to be used for storing sand.

Store Department employes with the use of a locomotive crane placed the body of NP 14923 on the foundation where the deteriorated car body had been removed. After the body of NP 14923 had been placed on the foundation, Car Department employes performed the following work on the body of NP 14923:

Cut out the end of the car body.

Fastened the end of the car body to the end of the car body used for sand drying.

Removed a portion of the roof of the car body.

Made and fitted into place two hatches for sanding.

Repaired the roof and boarded up the sides of the car body.

The work of placing the body of NP 14923 on the foundation and altering this box car body was performed between May 24, 1962 and July 9, 1962.

The claimants in this dispute were assigned to the B&B Department crew with headquarters at Brainerd and were assigned to work from 7:00 A. M. to 4:00 P. M. Monday through Friday.

Claim has been presented in behalf of the eight employes specified for payment at the respective straight time rates for an equal proportionate share of the total number of man-hours consumed by Store Department empIoyes and Car Department employes in unloading, placing and remodeling the car body, which claim has been declined.

OPINION OF BOARD: Store Department employes covered by the Clerks' Agreement removed a car body which had been used for storing sand at ,the shops and replaced it with another car body. Car Department employes altered the new body for this use.

The Employes contend that Maintenance of Way Employes have historically performed work in connection with construction, maintenance or repairs, or dismantling of tracks, structures or facilities in the Bridge and Building Sub-department and in the Track Sub-department of the Maintenace of Way Department. They rely on Letters of Agreement appearing on pages 62, 63 and 64 of the effective Agreement as evidence of this past practice.

Award 12952 (Wolf) involved the same parties and Agreement. In this

"It should be noted that the Letter Agreement involves only such work as is customarily performed by the Employes. It does not enlarge their domain of exclusivity and treats only with that work which the Organization could claim by operation of the Rules and history and tradition. There is no evidence that the parties intended to alter their respective positions with regard to exclusive jurisdiction over work. In fact on February 11, 1952, the parties entered into another letter agreement emphasizing that previous practice concerning work by the Employes were not changed by the Agreement of April 1, 1952.

"It is clear, therefore, that before the Organization may claim a violation of the Letter Agreement of January 31, 1952, it must prove that it was entitled to the work of operating the chemical weed spraying machine by custom and tradition. The record is silent as to any history of custom and tradition regarding the right of the Employes to perform this work. On the other hand, the Carrier asserted without denial by the Organization that it had contracted out this work in the 1930's and each year since 1955.

"The Organization raised one other point which merits some comment. It argued that the Carrier has acknowledged the Organization's right to this work by agreeing in 1958 to a rate of pay for a spray machine operator and the inclusion of this classification in Rule 2. The fact that a classification is established after the work had been performed for years does not vest it with greater significance than other, older classifications have. Exclusivity must still determined by custom and practice."

We concur in the reasoning of these Awards . After careful reviewing of .the record made on the property we must conclude that .the Employes have not established their right to this work through tradition or past practice.

That the Agreement has not been violated.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary