Therefore, if a sustaining award was handed down in this dispute, it would result in this carrier's receiving absolutely nothing from the June 4, 1953, Agreement, but was obligated to equalize passenger and freight carmen's rates without any reciprocity whatsoever.

The carrier requests that your Honorable Board pay particular attention to Article III of the subject agreement reading as follows:

"This rule shall become effective August 1, 1953, except on such Carrier as may elect to preserve existing rules or practices, and so notify the authorized employee representative on or before July 1, 1953."

The carrier has proven conclusively that it has been permissive to set up helpers and apprentices to fill mechanics' vacancies temporarily without protest nor claim from the petitioner prior to the June 4, 1953, Agreement. Therefore, it must be conceded, then, that if there was any possibility of the carrier's losing that privilege, it would not then have accepted the June 4, 1953, Agreement. For the record, the only reason that the carrier accepted the June 4, 1953, Agreement was due to the fact that there was only one diversion from the present existing agreement which was in effect since June 23, 1941-and that was that under the old agreement, it was the obligation of the carrier to consult the local committees or general chairman in order to set up a helper or an apprentice to fill a carman's vacancy. However, the June 4, 1953, Agreement eliminated that necessity, but everything else remained unchanged. Therefore, the carrier accepted the June 4, 1953, Agreement for that purpose only.

Also, for the record, at no time did the carrier ever encounter any difficulty with the organization in acquiring its mutual agreement in the setting up of a helper or an apprentice to a mechanic's position on a temporary vacancy. Therefore, there is no justification for claim, and it must 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 the dispute were given due notice of hearing thereon.

Car Inspector McDonald was regularly assigned at Mystic Junction, Mass., with hours 11:00 P.M. to 7:00 A.M. Upon the completion of his assignment on the morning of April 12, 1955, he reported that he would be off duty from his shift commencing at 11:00 P.M. that night.

Claimant Rogers was a regularly assigned car inspector with hours from 3:00 P.M. to 11:00 P.M. and on the completion of his tour of duty on April 12, he was available, ready and willing to fill the ensuing vacancy on McDonald's position but, instead, the carrier called a furloughed carman helper.

The carrier's action would appear to have been proper under a Memorandum Agreement of June 23, 1941, which. provided that "Regular and helper apprentices and mechanics' helpers may be temporarily advanced to mechanics' positions in the order named." However, the current agreement, dated June 4, 1953, provides:

"In the event of not being able to employ carmen with four years' experience who are of good moral character and habits, regular and helper apprentices will be advanced to carmen in accordance with their seniority. If more men are needed, helpers will be promoted. If this. does not provide sufficient men to do the work, men who have had experience in the use of tools may be employed. They will not be retained in service as carmen when four-year carmen as described above become available."

The organization contends that the agreement of June 4, 1953, abrogated the Memorandum Agreement of June 23, 1941, insofar as the matter in issue is concerned and that the carrier's action in the instant case was unauthorized by the current agreement.

The carrier asserts, on the other hand, that the part of the agreement of June 4, 1953, quoted above, was not intended to and does not disturb the practices permissible under the 1941 Memorandum; and that since the June 4, 1953 agreement became effective the parties have frequently and consistently recognized the carrier's right to temporarily set up helpers and apprentices to fill carmen's vacancies. A carrier's exhibit lists some 90 occasions between June 1, 1953, and November 24, 1955, when carmen's helpers were set up for temporary day to day assignments without protest. One of these instances personally involved the organization's local chairman.

In view of these facts it must be concluded that the parties have construed their contract as it pertains to the matter here in controversy and that they are bound by such construction until such time as it is changed by mutual assent. It is unnecessary, therefore, for us to concern ourselves with the technical terminology of the agreements.

AWARD