"We think that these holdings by the courts are perfectly sound and appropriate for application in the instant case. There is no stated prohibition against the use of common labor in connection with signal work in the agreement between the parties. The application mutually given the agreement by the actions of the parties over the past twenty years without controversy forbids the adoption now of the fantastic and extravagant construction which the petitioner would have your Honorable Board place upon it. Even if the language of the agreement lent color to their argument-which it does not-we still insist that the actions of the petitioner as well as of your respondent over the past twenty years have placed a practical construction upon its terms contrary to that which petitioner now asserts.

SUMMARY,

"I. There is nothing contained in the current agreement which directly or by implication places any limitation upon the employment of laborers or unskilled work at commensurate rates for that class of workers in connection with signal installation, construction, or maintenance.

"2. It has also shown the history of the rule, which it believes petitioner will rely upon. As originally written and applied it did not forbid the employment of common labor, and no such construction of it was ever urged; that it was modified merely for the purpose of quieting the fear of the employes that the carriers would be prone to employ helpers to perform the work of journeymen or their apprentices except for the inclusion in the rule of a definite limitation upon the kind of work which a helper might perform when working alone, or when working with one or more other helpers.

"3. The construction placed upon the agreement by your respondent is neither novel nor unique but on the contrary is the construction generally placed upon it and with the tacit acquiescence of the employes and their representatives in the territory in which respondent's property is located, and generally throughout the country.

"4. Your respondent has also shown that analogous contracts contain the same provisions with respect to employment of helpers but that laborers are also employed in connection with work of skilled craftsmen, and it has never been contended under such contracts that the employment of common labor impinges upon the rights of journeymen, apprentices, or helpers.

"5. Respondent shows that the construction placed upon the contract over a period of twenty years, by the actions of the parties to it, has clearly construed its meaning, and that to place any other meaning upon the language of the contract now would be fantastic and extravagant; it would in fact be to strike from the agreement certain of its provisions which the parties have heretofore thoroughly understood and observed and to write into it in their stead certain terms and conditions here urged by the petitioner, which, so far as the records of this craft and its representative organization indicate, was never thought of or urged prior to some five or six years ago.

"In view of all these things your respondent urges that the claims here before your Board must in justice be denied."

OPINION OF BOARD: In 1939 the Atlanta Terminal Company undertook a program of rebuilding its signal and interlocking system. ^.'o perform

Rule 1 of the existing agreement classifies the employes covered by the agreement, as follows:

"Gang foreman, leading signalman; leading maintainer; signalman, signal maintainer; assistant signalman, assistant signal maintainer; signal helper."

There is no classification of "laborer" in the agreement, no wage rate for such class, nor is there work of the signal department stated that may be performed by employes classified as laborers.

"A man assigned to assist other employes specified herein shall be classified as a signal helper. A signal helper when working alone, or two or more signal helpers working together, may perform such work as filling and cleaning lamps, cleaning and oiling interlocking plants, bonding track, renewing primary batteries, excavating, and handling material, but shall not be permitted to do work recognized as distinctively maintainers' or signalmen's work."

It is clear that Rule 1 (e) contemplates that common labor performed in connection with signal work, is signal work within the meaning of the agreement. This record discloses that the work described in Rule 1 (e) is the very type of work performed by the "laborers" here concerned. This rule further contemplates that the helpers will perform common labor either while working alone or with their superior, or when two or more signal helpers are working together. Certainly, if it were intended that a lower classification should also perform this unskilled work which the agreement says may be performed by the helpers, while working alone or in groups, and which is definitely classified as signal work, a wage rate for such lower classification would be provided. The wage rate found in Rule 60 was very obviously intended to include all the work covered by the agreement, which includes the common labor set out in Rule 1 (e), and no wage rate is therein provided for a lower rated position than helper.

Award 565 is controlling. There, as here, a signal gang was organized to do extensive work, and the attempt was made to employ "laborers," under the claim "that laborers classified and paid as such performed only laborers' work." This Division of the Board held that work performed in the Signal Department, generally recognized as signal work, is subject to the agreement, and that the agreement containing no classification of "laborers," there was a violation by employing laborers to perform signal work. We are not inclined to disturb Award 565. Had it been within the contemplation of the parties at the time of making the agreement that laborers should perform a part of the work generally recognized as signal work, such fact should have been mentioned in the agreement, at least insofar as the wage rate is concerned. Otherwise, signal work would be performed by employes not covered by the agreement, contrary to the constant holding of this Board that work covered by an agreement cannot be performed by employes not covered thereby.

The carrier depends to a large extent upon its past practices in employing laborers to perform common labor. We have carefully considered the record as made by both the carrier and the employes, and upon this issue we are convinced that this record discloses no limitation upon the agreement within the meaning of Award 615 of this Division. This same contention was made

in Award 565, and it was there held that practice was of "no moment." In this connection also see Awards 137, 456, 735, 906 and 1218.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the carrier and employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the carrier violated the agreement by its failure to pay the Signal Helper's rate of pay to the claimants; it also violated the agreement by employing laborers to do signal work.

AWARD