Dana E. fiechen. Referee


Brotherhood. of Maintenance of Way Employes PARTIES TO DISPUTE: (Duluth Miseabe and Iron Range Railway Company

 STATEMENT CF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated whew on May 3, 4 and 5, 1977s track department forces were used to install (renew) two (2) 'all-rail' crossings at Missabe Junction (System Claim 37-77).
(2) B&B employee S. M. Beroa (#10619)s Steve H. Kautie (10942) and T. J. Walczyaeki (#11032), who were furloughed and available on the claim dates each be allowed twenty-five and one-half (25-1/2) hours' pay at the B&B Carpenter's rate."

                OPINION OF BOARD: Prior to November h 1963 there was disagreement between the Carrier and tat of the Brotherhood; viz.

Employes con which subtlete
 meat Employee or Bridge and Building (B&B) Department Employ7s-, possessed the
 exclusive right to perform the work of installations renewal, replacement and
 repair of grade crossings* An agreement concerning the disputed work wen
 signed by the parties on November h 1963. This rule is presently known as
 Supplement No. 9 and is the mile under which the instant claim arises. On
 May 3, 4 and 5,, 1977 terrier assigned the Missabe Junction Track (mew (ell
 Track Department Employes) to install two grade crossings at Miseabe Junction.
 The work required eighty-eight (88) man-hours to complete& on June 17s 1977
 the organization filed a claim on behalf of then-furloughed B&B employee.
 S. M. Baron.. S. H. Knutie sad. T. J. Walczynski for 25j hours' pay each at
 the B&B Carpenters current rate of pay. The claim was denied at the first
 sad subsequent levels and denied on final appeal on March 24.. 1978.
        Supplement No. 9, the rule at issue, reads as follows:


                      "SIIePl,EMELCT N0. 9


            Jurisdiction of Work - Track Department - B&B Department


        B&B employees will install, renews replace and repair all grade crossings, except that:


              "1. Track Department Employees may be used to install a new crossing or to perform repairs on s particular crossing when such repairs or installation can be performed by Track Employees or Employee in a total of not mole than 12 hours within any six-month period. (Travel time is not to be included in the computation of the 12 hours.)

                      Award number 23832 Page 2

                      Docket Number MW-22695


                "2. Track Department Employees may remove, replace cad repair crossing planks slabs ar other crossing materials with same or other materials when performing programmed track maintenance work which is understood to be either surfacing., ballasting,, ar tie ar rail replacement through the crossing area. The aforementioned is not to include spot tie removal ar spot tamping or raising. When spot tie removal ar spot tamping ar raising work is performed, only those planks involved is such work may be removed ar replaced by the Track Employee.


                "3. Go eravental agencies ar their contractors may perfa~ crossing surfacing when done in connection with street ar highway improvements.


                When a crane is used in Ore Dock repair work., suds work will be assigned to the proper Track Department Employees."


Bath grade crossings involved in thin claim were of the type designated "all-rail" crossings., which indicates that steel rail is incorporated parallel to the track rails as s bearing surface far automobile and other traffic crossing the grade. (terrie 9 is use= quivoml when it states that "B&B employees rill installs renew,, replace and repair all grade crossings*.*" Carrier disputes hoveverj, that the rule as constructed was intended to cover even those crossings constructed of rail. To support this argtmveat.. Carrier asserts that 1) there has never bees a question that the placement of rail trackage is grads crossings is Track employees work; 2) whenever the installation ar maintenance of a grade crossing of "all-ra31.° w maintains that between 1963 andL 19TSr thirty-five (35) "all rail" grade crossings were installed on. Carrier's property by Track employees without arty protest from B&B employees. The Carrier urges,, therefore,, that if Supplement 9 is ambiguous with respect to "all rail" grade crosaingaj, past practice is clear and supports allocation of the work of installation of allrail grade crossings to
        The organization counters that Supplement 9 is clear is allocating

the work of installation,, renewal., replacement sad repair of all grade crossings
 to B&8 employees. It notes that exceptions to the rule are listed is supplement 9,,
 cad asserts that since all -rail grade crossings are not specifically named is
 those exceptions they are thereby included in the phrase-"all-grade crossings."
 The organization does mot dispute allocation of the work of installing affil
 maintaining running rails to Track Department employee. It points outs however,
 that rails need is all-rail grade crossings are not used as running rails but
 as a crossing surface far vehicle traffic. Finally the Organization maintains
 that even if., arguendo, track employes-havc previously performed the work of
 all-rail grade crossing installing without complaint from B&B employes., the
 Organization retains its right to protest such practice nw. The Organization
 argues that where language of an Agreement is clear and uaembiguous it takes
 precedence aver contrary past practice.
                      Award Humber 23832 Page 3

                      Docket Humber h8d-?2695


The issue in this dispute canters on one principal and two ' derivative questions. The first question to be answered is: Is Supplement 9 (Wrs) dear and unambiguous in allocating to H&8 workers installation, renewal, replacement and rep exceptions as noted)?

 The derivative questions are 1) It the answer to the principal question la negative, has the Organization shown a pattern of system-wide peat practice of exclusive reservation of the installation, renewals replacement nod repair of all-rail, grads crossings to B&8 workers? and 2) If the answer to the prindpal question is af of allocating such work to Track employee without protest fry B&B employee take precedence over the dear affil unambiguous language of the agreement?

        fhrePnl reading of Supplement Ho . 9 suggests no ambiguity with re-

spect to assignment of work on grade crossings. It dearly states that "B&B
 employes x311 installs renew, replace and repair all grade crossings..."
 (emphasis ours). Nowhere in the three exceptions lo71ow3sig the role is ref
 erence made to ell-rail crossings. It is a well established
 this and other Divisions that where specific ^exceptioss to a rule are envn
 dated is the Agreement a situation not so enunciated is presumed included
 by implication in the main body of the Role. To find otherwise would im
 pute meaning to a Role ether then that which the parties themselves have
 written (Awards 71b6, T(18.. 1-20aT(s 1-2312).

        Having thus determined the threshold inane we moat next address

the question of whether Carrier's heretofore unchallenged peat practice takes
 precedence aver the clear and unambiguous contract We re reviewed
 the awards cited by (terrier on thin issue and find them readi distinguishable
 from the instant case. Awards 3_22p12 and 3-22156, for example., involve ai~t
 nations in which Organization General Chairman had agreed some time prior to
 the claim with (terrier concerning the past practice at issue. Such is not the
 ease is the instant matter. Moreover in Award 3-22156 there area not, as here,
 dear affil unambiguous contract langaage. In Award 3··16752 the disputed work
 was ruled to be entirely outside the Scope of the Agreement, not as implied
 exception to the specific wording of the Agreement.

 It has been a generally accepted principle in many previous awards that past practice may not take precedence over clear and unambiguous contract language (3-22148 3-18064, 3-6144). We find nothing is the record before no to support overturning that principle.

 Based upon careful consideration of the entire record, and far the reasons set forth above we must sustain the claim.
 Award Number 23832
 Doeloat Number t9W-22695

        FENDnYGS: The Third Division of the Adjustment Board.. upon the whole record and all the evidence, finds and holds:


That the parties waived oral hearing;

 page 4

 That the Carrier and the Employee involved is this dispute are respectively Carrier and Employee within the meaning of the Railway Lobar 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.

 Claim sustained.

 ATTEST: Acting Executive Secretary
      National Railroad Adjustment Board


W A R D
SATIUNAL RAILROAD AD,TUSWW BOARD
 By Order of Third Division

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    / w4Aa L~4446ez

    Rosemarie Brasch - Administrative Assistant


Datled at Chicago, Z7.linois, this 26th day of March 1982.

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