NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in

addition Referee Dudley E. Whiting when the award was rendered.

SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'

DEPARTMENT, A. F. of L. (Carmen)

ILLINOIS CENTRAL RAILROAD COMPANY

DISPUTE: CLAIM OF EMPLOYES:

(1) That under the current agreement the following carmen were .improperly compensated at the straight time rate for service performed on the dates as shown opposite their names:

M. M. Newell -July 6, July 20, 1953

Aliby Smith -July 10, July 16, 1953

August 13, August 18, 1953

S. M. Ginn -June 14, June 16, June 18, 1953

July 28, 1953

August 17, August 25, 1953

October 20, 1953

November 3, 1953

have proceeded to resolve the conflict in accordance with the recognized principles for the construction of contracts. Carrier has pointed out in this submission that one of the accepted principles in the construction of contracts is that a special provision of a contract, such as the Vacation Agreement in this case, takes precedence over a general provision, such as the changing shifts rule. Had that principle been applied, the Board would have reached a different conclusion in Awards 1806 and 180 7.

The carrier members in their dissent to Awards 1806 and 1807 commented on the awards' holding that practice will not change an unambiguous rule. The referee in effect held that the changing shifts rule was plain and unambiguous and could not be altered by practice. Completely ignored was the fact that Referee Morse's binding interpretation was likewise completely plain and unambiguous and, if the Board was to perform properly its duty to interpret agreements, had to be harmonized with the changing shift rule, which the Board declared was in conflict with it. The Board failed in Awards 1806 and 1807 to apply a second recognized rule for the construction of contracts, which is succinctly stated as follows in 12 Am. Jur., Contracts, § 249 :

"Interpretation by Parties.-In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms. In fact the courts will generally follow such practical interpretation of a doubtful contract. It is to be assumed that parties to a contract know best what was meant by its terms and are the least likely to be mistaken as to its intention; that each party is alert to protect his own interests and to insist on his rights; and that whatever is done by the parties during the period of the performance of the contract is done under its terms as they understoood and intended it should be. Parties are far less likely to have been mistaken as to the meaning of their contract during the period when they are in harmony and practical interpretation reflects that meaning than when subsequent differences have impelled them to resort to law and one of them then seeks an interpretation at variance with their practical interpretation of its provisions . . . ."

It is clear that the mutual construction given by the parties to the whole agreement, including the Vacation Agreement, over a period of almost twelve years should have been accepted by the Board as evidence of the proper interpretation of the agreement. The findings of the Board in Awards 1806 and 1807 were fundamentally wrong and should not be followed as a precedent.

There is no basis for the claim in this dispute, and it should be denied.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The parties to this dispute were given due notice of hearing thereon.

Disposition of this claim is governed by our Award No. 2440 (Docket No.

AWARD