PINDINGS.-7'he Third 1)ivisioa of if)(' Adjustment Board, upon ilic N1liole record find all the evidence, finds that:
The carrier and the employees involved in this dispute are respectively eatrier and employees Icithin the awaiting of the Railway DIbor-Act as approved June 21, 1034.
'Phis Division (if flip Adjiu,tinerit fioxlrd has jurindlction oeer the dispure involved herein.
The parties to said dispute were given due notice of hearing thereon.As a result of a deadlock. Lloyd K. Garrison was called ht :td Referee to sit with the Division as a tneiuber thereof. An agroeirient dated April 12, 11$32, is !it effect between the parties.
The employees base tbeir claim largely on Ride 33 of the Agreement, which covers rate., of pay and reads in pall as follows:
The evidence indicates that at the time the agreement was entered into (which was after the lapse of some years when no agreement was in effect covering this cla.,s of work), pampers at fifteen (1G) of its localities specifled above were handling not only their own pumps, but pumps in adjoining localities, likewise specified above-sometimes one (1) such additional pump, and sometimes two (2). The carrier asserts, and it is not denied by any any evidence, that some of these combination assignments had been in effect for eleven (11) years, others for six (O) years, others for five (5) yours, and the latest for twenty (20) mouths prior to the taking effect of the agreement. If these circumstances had been unknown to the representatives of the employes at the time of the negotiation of the agreement, they would have been of no significance in determining chat was intended by the schedule of localities and wage payment., listed above. But it is shown that one of the four representtttives of the employes who negotiated and signed the agreement, H. S. Giddens, was himself a pumper, and for at least twenty (20) months prior to the agreement, had been in charge of a combination assignment, with his headquarters at Lake Pickett, and with two other pumps in his charge in the adjoining localities of Maytown and Solofka. The base rate for each of these localities was $75.00 per month, but, in nccoxdaace with the practice both before find after the agreement, Air. Giddens was paid only the base rate of the station at which lie was headquartered, thus receiving $78.00 a, month.
If the interpretation contended for by the employes were adopted, Mr. Giddens, from the moment the agreement tool: effect, would have been entitled to $78.00 a month on account of each of the three stations giving him a total salary of $3;11.00 a mouth, which, with one exception, would have been more than twice the salary of tire highest paid employs of any other class covered by the agreement, and presumably so far out of line with the customary remuneration of pumpers, as not possibly to have been contemplated either by him or by the carrier, For some three years after the agreement took effect, Mr. Giddens made no claim for triple salary. As one of those who negotiated and signed the agreement, it is hardly conceivable that he would not promptly have male such a request if he and the other members of his committee had supposed that the agreement meant what it is now said to mean.
Ordinarily, established practices and failure to prosecute claims have no bearing upon the interpretation of written agreements where the agreements are so clear and explicit on their face as to leave no doubt of their meaning. To the Referee, at least, the agreement in this ease is not so dear and explicit on its face as to trove no doubt of its meaning, and it is, therefore, permissible to consider established practices and failure to prosecute claims as bearing upon what the parties had in mind when they negotiated and wrote the agreement Here it is established t1mt one of the four representatives who negotiated the agreement knew, at least in his own case, of the practice of combination assigumehts, and his failure for three years to raise the question after he had signed the agreement is evidence, in absence of any contrary showing, that at the time he signed the agreement he understood it to mean what the carrier contends it means. And, in the absence of any contrary showing as to the intention of the parties, his knowledge of the practice and his acquiescence in the method of it seems fair to presume that his associates who participated
with him in the negotiation of the pumpers' wage scale understood also what was involved, for otherwise they could not have negotiated intelligently.
The representatives of the employes are fearful that, if the claim is denied, the carrier will be able, at will, to lay off men, set up further combinations, and thus effect a species of stretch-out. Rut this decision has no bearing upon that question. The carrier asserts, and there is no evidence to disprove, that since the agreement went into effect in 1931, no change of assignments has been made, except that at one station where two pumpers were employed, one was laid off. It may well be that if the carrier were to put into effect new combination assignments in such a way as to effect, in suhstance, a reduction in compensation by increase in work, a claim that the intent of the agreement was being violated might properly be considered. But that is not the claim before us, and it is not here decided.