There is also in effect a "MEMORANDUM OF AGREEMENT" in connection with the above agreement, which was executed on the same day (November 10, 1941) and which reads as follows:

ACCEPTED FOR

POSITION OF CARRIER: There has been no violation of either the Clerks' Agreement, effective November 15, 1926, or that covering Miscellaneous Employes, effective December 1, 1941.

The work claimed by the Employes as being clerical work is not clerical work, but that which is usually done by janitors and porters employed not only y railroads but all other lines of business, and by all other janitors and porters employed in its stations and General Offices of this Carrier.

The work assigned to the position of Porter in the Atlanta Agency, occupied by Dolph Lester (colored), is properly assigned, and has been over a period of 23 years.

The first paragraph of "MEMORANDUM OF AGREEMENT" executed November 10, 1941, in connection with Agreement covering Miscellaneous Employes, and effective December 1, 1941, reading-

was insisted upon by the Carrier to protect the positions and assignments of its colored employes, and was readily agreed to by the Committee executing the agreement.

The Carrier contends that were it to allow this claim, it would violate the terms of this "MEMORANDUM OF AGREEMENT."

OPINION OF BOARD: There is in evidence an Agreement, effective November 15, 1926, the scope of which, exclusive of certain exceptions not here pertinent, is as follows:

"Rule 1. EMPLOYES AFFECTED

Checkers, Baggage and Parcel Room Clerks, Train and Engine Crew Callers, and Operators of Office and Station Equipment Devices."

"Rule 3. DEFINITION OF CLERK

"All employes who are required to do clerical work or office duties of any nature in any department, station or office shall be considered clerks within the meaning of this schedule."

"Rule 71. EXISTING AGREEMENTS

"The rules of this agreement shall supersede and be substituted for all rules of existing agreements, practices and working conditions."

Subsequently, the parties entered into another Agreement, bearing effective date of December 1, 1941, with a scope rule reading:

"These rules shall govern the hours of service, rates of pay and working conditions of the following employes: Laborers employed in and around stations, storhouses and warehouses, including freight handlers, baggage and mail handlers, office and station janitors and porters, red caps, elevator operators, maids, cleaners (other than in Mechanical or Roadway Departments), and those performing other similar work."

There is also before us a Memorandum of Agreement, dated November 10, 1941, which contains the following provision:

"It is agreed and understood that all positions now held by colored employes will be filled only by colored employes."

The first question for our determination is whether the claimant, employed at the Atlanta Freight Agency, should be classified as a clerk under the Agreement of 1926 or as a janitor under the Agreement of 1941. To avoid any immaterial controversy as to the nature of the duties performed by the claimant, which the petitioner claims were clerical, we accept, for the purposes of this opinion, the carrier's statement thereof:

"1. Going to and from Terminal Station to carry mail.

2. Opening and stamping incoming mail.

3. Second trip to Terminal Station to carry mail.

4. Filing orders from supply room.

6. Binding various files and records.

6. Padding carbon and work in storeroom.

7' Copying on Hectograph machine."

8.

The carrier's submission further discloses that claimant's regular hours were from 6:30 A. M. to 4:30 P. M. on week days and from 7:00 A. M. to 11:00 A. M. on Sundays; and that he devoted 43¢ hours on each week day, 15 minutes on Sunday and, in addition thereto, 30 minutes each week and one hour each three months to the performance of the alleged clerical duties above described.

As this Board said in Award 806, "there are few, if any, employes of a carrier, from the president down to the laborer, who does not perform some clerical work in connection with his regularly assigned duties." Manifestly, therefore, the scope rule of the Agreement of 1926 and the definition of a clerk contained in Rule 3 thereof are not to be interpreted as having any such narrow and meticulous meaning. To hold that a ,janitor should be classified as a clerk merely because he incidentally performs some functions that might, technically, be deemed of a clerical character would defeat the purposes of both Agreements with which we are concerned. Fortunately, we have here a practical and efficient yardstick for determining the claimant's

proper classification. More than half of his working time is devoted to the duties upon which that issue is to be resolved. The parties agree that he is either a clerk under the Agreement of 1926 or a janitor under that of 1941. It only remains for us to fit his admitted duties into the appropriate scope rule.

We have no hesitancy in expressing the opinion that carrying, opening and stamping mail, filing orders, binding files and records, padding carbon, and operating a Hectograph machine, fall more naturally and logically within the category of the duties of clerks, office boys, messengers, chore boys, and operators of office equipment, than within those enumerated in the scope rule of the 1941 Agreement, heretofore quoted in full. The fact that the position occupied by the claimant carried the title of "janitor" is of no consequence, one way or the other. It is the character of the work actually performed that is controlling. For an exhaustive discussion of that subject see Award 1314; also Award 2091.

The carrier concedes that the Memorandum of November 10, 1941, providing that "all positions now held by colored employes will be filled only by colored employes," is supplemental to the Agreement which became effective December 1, 1941, and we have already determined that the claimant's rights are fixed by the Agreement of 1926. It follows that said Memorandum has no bearing on this case.

Finally, it is asserted on behalf of the carrier that the claimant acquiesced in the performance of the same duties for 24 years without protest. Rule 71 of effective Agreement of November 15, 1926, wrote out all "existing .

practices and working conditions," and substituted specific rules in lieu thereof. The continuing violation of a rule will not change or diminish its binding effect, though acquiescence in respect to such conduct may estop the claimant from recovering for the period prior to the time when said violation was called to the attention of the carrier. The petitioner is requesting only that the position be classified, rated, and the current agreement applied as of April 5, 1941, when it called the carrier's attention to the violation. This conforms to the established practice. Award 1518.

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 the 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 applicable agreement as contended by the petitioner.

AWARD