pipe lines, pumps, engines, tanks, treating plants, water columns, windmills, and all other facilities used in the pumping, handling, storage and delivery of water for all railroad purposes including locomotives, stationary boilers, heating plants, cooling systems of all kinds, washing, drinking and sanitary facilities, and all other work generally recognized as water service repairmen's work."

Clearly, the rule is generally confined to work on "facilities used in the pumping, handling, storage, and delivery of water." It does not list repair work on maintenance of way roadway equipment. In the absence of a rule specifying that roadway equipment repair work belongs exclusively to water service employes, the union must show that the company has a long-standing tradition of assigning work exclusively to water service repairmen.

The union cannot prove the repair work at the twenty-sixth street shop has been assigned exclusively to water service repairmen. Even if it could have so proved, it would not be sufficient to support the claim. A host of Adjustment Board awards have held that it is not sufficient to prove the work has been assigned exclusively to employes of one craft at an isolated point. The union must prove system-wide practice. In Second Division Award 1110, Referee Sidney St. F. Thaxter said:

"The mere fact that the machinists have in some instances done the work is not of importance where it does not appear that there has been a practice under which they have done it exclusively."

In Third Division Award 7031, Referee Carter said:

"There is no position listed or described in the Scope Rule of the Clerks' Agreement which makes the work of testing water and the reports incidental thereto the exclusive work of Clerks. The record shows that this work is performed by other crafts (Machinist, Laborers, Machinist Helpers, Electricians, Roundhouse Foreman and Supervisors) at other points on this Carrier. It appears clear to us that the work was not the exclusive work of any craft. Where work may properly be assigned to two or more crafts, an assignment to one does not have the effect of making it the exclusive work of that craft in the absence of a plain language indicating such an intent. Nor is the fact that work at one point is assigned to one craft for a long period of time of controlling importance when it appears that such work was assigned to different crafts at different points within the scope of the agreement." (Emphasis ours.)

As Referee Carter said, in absence of plain language in the agreement indicating intent to assign the work to the employes exclusively, it is not sufficient for the union to prove that the company assigned the repair work to water service repairmen at a single point. It must show that the company assigned the work to water service repairmen exclusively at all points. Referee Carter made a similar holding in Second Division Award 1626:

"Where work may properly be assigned to two or more crafts, an assignment to one does not have the effect of rewriting the agreement. The work is necessary to be performed by some employe or employes entitled to perform it and assignment to one group does not make it exclusively theirs unless there be a plain intention manifested to do so."

In Second Division Award 2255, an Illinois Central case, the electrical workers contended that at Carbondale, Illinois "the work of cutting electric cables has always been performed by the electrical workers in the past.” Referee Carter denied the claim that other crafts had no right to do the work saying:

"Claimants contend that the work is theirs because they have been permitted to perform it for some time. Where work may properly be assigned to two or more crafts, an assignment to one does not have the effect of making it the exclusive work of that craft in the absence of plain language indicating such an intent. Award 7031, Third Division, Award 1626, Second Division. No intent to assign the work to electricians exclusively has been shown by the record."

In Second Division Award 3495, Referee L. H. Bailer upheld the principle saying:

"The interpretation that is to be placed upon the agreement cannot be permitted to vary from one point to another on the property. Such a result would lead to utter confusion."

Third Division Award 11605 (Brotherhood of Maintenance of Way Employes v. Illinois Central Railroad Company) is directly in point. At Clinton, Illinois, motor car repairmen traditionally performed the necessary painting and stenciling of road equipment until January, 1946, when the work was assigned to a painter at the paint shop holding seniority on another seniority roster. In 1955, the work reverted to motor car repairmen. The union contended the company was obliged to follow its nine-year-old precedent by continuing to assign the work to painters. Referee Coburn held:

"Accordingly, the Board cannot find that the work here claimed was reserved exclusively to Claimant under the Scope and Seniority Rules of this Agreement which, on its face, is system-wide in its application.

The claim, therefore, will be denied."

In Third Division Award 10615, the Clerks contended the Pennsylvania Railroad violated the scope rule by assigning the duty of witnessing the signature of trainmen and enginemen on crew register sheets to conductors and enginemen. The union argued that the work at the specific point (Penn Coach Yard) had always been assigned to clerks. Referee Phillip G. Sheridan denied the claim and held that, because the scope rule "does not show that this work was exclusively that of the Organization," the union must prove that the work had been assigned exclusively to clerks throughout the system. Mr. Sheridan said:

"Does custom, tradition and past practice reserve these clerical duties to the Claimants? We must answer this inquiry in the negative. In order to maintain such a position, the Organization must prove by a preponderance of the evidence that such past practice, tradition and custom was system-wide. The evidence in this claim does not support such an allegation. We do not believe that past practice, tradition and custom is proof of reservation of the work in question when it is

isolated to a specific area, in order to be established, it must be shown conclusively that past practice, tradition and custom is coextensive with Carrier's system.

In the instant case and in light of the foregoing we feel that no further discussion on the merits or the applicability of other rules is necessary. The Agreement was not violated."

In Third Division Award 7784, Referee Lynch gives an excellent summary of the principles that apply to this case. In the dispute leading to Award 7784, the company had assigned the work of servicing car heaters to freight house clerks at Marion, Ohio for over 22 years. The railroad elected in 1954 to assign the work to car department employes. The clerks filed claim contending it had exclusive right to service the heaters at Marion because the company had established a practice of assigning the work to clerks “even prior to the first agreement with the Organization at this location." The union conceded that other employes perform similar work at other locations. In denying the union's claim, the referee reached the following conclusions:

“... We must conclude that despite the acknowledged fact that car heater service was performed at West Bound Yard, Marion, Ohio by Roster 'B' employes for 22 years,

1) this work is not assigned to them by specific reference
in the Agreement:

2) Organization has failed to prove that this work belongs
to its members to the exclusion of all other classes or
crafts on Carrier's system;

3) there is no definite knowledge or proof that claimants
have 'lost,' have been ‘injured';

4) the Agreement here applicable is not a sectional, but
is a system-wide agreement; and

5) the evidence of record would indicate that prior to Award
of this Division, 7031 (Carter) covers the issue here
before us:

.. Where work may properly be assigned to two or
more crafts, an assignment to one does not have the effect of
making it the exclusive work of that craft in the absence of a
plain language indicating such an intent. Nor is the fact
that work at one point is assigned to one craft for a long
period of time of controlling importance when it appears
that such work was assigned to different crafts at different
points within the scope of the agreement. We conclude that
the work here in question was not the exclusive work of
Clerks on this Carrier. . . .'

A denial Award is, therefore, indicated."

The awards have established that, in the absence of a specific rule granting the work exclusively to a particular craft, the union must prove

with substantial evidence that the work has been traditionally assigned to the employes in that craft throughout the system. Since the rules have systemwide application, it is not sufficient to show merely that the work has been assigned to the employes at a specific location. Clearly, as Referee Carter and others have said, where work may properly be assigned to two or more crafts, an assignment to one does not have the effect of making it the exclusive work of that craft in the absence of plain language indicating such an intent.

There is no rule in the sheet metal workers contract, having system-wide application, that shows that the company and the union have agreed that roadway equipment repair work belongs exclusively to water service repairmen. The opposite is true. The work is assigned to maintenance of way employes as well. The union's claim is not valid.

C. THE CLAIMANTS SUFFERED NO LOSS

Even if the claim had been filed within the prescribed time limits and the union had proved a violation of the contract, the claim presented would not be valid. Without offering the slightest proof that any or all the claimants suffered loss, the union filed claim in behalf of every water service repairman on the repairmen's seniority roster for "the penalty rate, for each day worked by Michele Fusco." There is no penalty rule in the Sheet Metal Workers contract. In the absence of such a rule, the union must first prove that each of the claimants suffered loss; and second, prove the degree of their loss:

“... any employe allegedly injured must be specifically identified and it must be shown just how this employe's contractual rights have been invaded. ...” [Award 3-6391, Elkouri (Emphasis ours.)]

The company did not invade the rights of any of the claimants and none suffered loss in pay. Each was on duty and under pay while Mr. Fusco worked at the repair shop. Most, in fact, are not assigned to repair work at the twenty-sixth street shop and would not have worked at the shop in any circumstances. Of the twenty four claimants named, only eleven repair roadway equipment at the twenty-sixth street shop. The union may contend that some of the claimants would have been used at overtime if Michael Fusco had not worked. There is no basis for such a view. The work could have been carried over from day to day. Moreover, there is no evidence to show which of the claimants, if any, would have worked overtime or how much time they would have consumed. The assignment of Michael Fusco to the repair shop did not deprive any of the claimants of loss in pay.

The Second Division has often held that in the absence of a showing that the claimants suffered loss in pay, a money claim is not valid. Here are some of the more recent awards.

AWARD 3672

The union filed for "four hours" because the claimant was required to perform work outside his assignment. Referee Mitchell denied the claim because:

"The carrier raises several reasons why the claims should be denied. We will discuss only one of them, to wit, the claims for penalty pay are without agreement support.

The claimant was fully paid for the work he performed, he lost nothing. The employes have not cited any rule of the Agreement to support the claims for penalty pay. . . ."

AWARD 3967

The company changed the starting time of four employes and the union filed claim for overtime pay. The board held the company violated Rule 2(b) but denied claim for compensation. Referee Johnson held that in the absence of a penalty rule, no money was due because the union failed to show the claimants suffered loss in pay:

“No pecuniary loss or damage to Claimants is shown, and the Agreement does not provide for any arbitrary or penalty for this violation.

It is a well settled rule of statutory construction that a penalty is not to be readily implied, and that a person or corporation is not to be subjected to a penalty unless the words of a statute plainly impose it. Tiffany v. National Bank of Missouri, 85 U. S. 409; Keppel v. Tiffin Savings Bank, 197 U. S. 356.

The rule is equally applicable to the construction of contracts; for the parties can readily agree upon penalty provisions if they so intend, and the absence of such provisions negatives that intent.

The Supreme Court of the United States said in L. P. Stewart & Bro. v. Bowles, 322 U. S. 398, that to construe a statute as imposing a penalty where none is expressed would be to amend the Act and create a penalty by judicial action; that it would further necessitate judicial legislation to prescribe the nature and size of the penalty to be imposed.

Similarly, for this Board to construe an agreement as imposing a penalty where none is expressed, would be to amend the contract, first, by authorizing a penalty, and second, by deciding how severe it shall be. Not only are the parties in better position than the Board to decide those matters; they are the only ones entitled to decide them. Consequently there have been many awards refusing to impose penalties not provided in the agreements. Among them are Awards 1638, 2722 and 3672 of the Division; Awards 6758, 8251 and 15865 of the First Division; and 7212 and 8527 of the Third Division."

AWARD 4083

The Boilermakers filed claim for "four hours' pay" because maintenance of way employes performed work allegedly belonging to them. Referee Johnson agreed the work belonged to the boilermakers but denied the money claim because the record did not show that the claimants suffered any loss:

"The work in question comes within Rule 50, the Boilermakers' Classification of Work rule. It does not constitute repairs, but modifications of machinery, which the manufacturer of the equipment has now adopted as standard. Claim 1 should therefore be sustained.