This Board has also held in Award 2137, Referee Thaxter, that "repeated violations acquiesced in by employes may bring into operation the doctrine of estoppel." .

On October 3 and 24, 1940, a number of cases were handled between the Carrier's General Superintendent and Mr. 0. L. Chadwick, then General Chairman of the Employes, including one involving the discontinuance of the second trick position at Kingston. Mr. Chadwick wished the second trick operator at Kingston restored. His request was denied. However, at that conference no reference was made to the hours of assignment of the first trick operator. Under such circumstances the Carrier maintains that Awards 1289, 1806, 1911 and 2137 of this Division apply and that the claim should be declined.

OPINION OF BOARD: This claim is based on alleged violation of Rules 6 (a) and 6 (b) of the current agreement, effective May 1, 1940. It seeks compensation for one hour each week day from Oct. 19, 1937, to March 16, 1943, because the Employe was assigned to work eight consecutive hours and was not allowed one hour for meal period each day. Kingston Yard is a oneshift and one-man office. Rule 6 of Telegraphers' Agreement reads:

(a) Where but one shift is worked employes will be allowed sixty (60) consecutive minutes for meals between four (4) hours and thirty (30) minutes and six (6) hours and thirty (30) minutes after starting work.

(b) If the meal period is not afforded within the allowed or agreed time limit and is worked, the meal period shall be paid for at the pro rata rate and thirty (30) minutes, with pay, in which to eat shall be afforded at the first opportunity."

The Carrier assigned the operator at Kingston to work eight consecutive hours daily except Sunday, 8:00 A. M. to 4:00 P. M., with no meal period and without pay for the meal period. Thus, we find there was a violation of the rule of the current agreement.

The Carrier contends, however, that the assignment was made to accommodate Operator Paradise who held the position and that he benefited by reason of being able to return home one hour earlier each day; that no complaint was made for nearly three years after the May 1, 1940, agreement became effective and that there was a voluntary agreement between the employs who filled this position and the Carrier.

The Agreement involved in this case clearly provides for an allowance for the meal period within a time specified. The Agreement is not between the Employe and the Carrier and the essence of the claim here is for the enforcement of the Agreement. Regardless of what the individual Employe may agree to, the Carrier is bound to pay him the amount the Agreement called for, see recent award of this Division, No. 2784.

If the Carrier could enter into agreements, be they voluntary or not, with its individual employes to vary the terms of the current agreement, it would certainly mean an end of collective bargaining, for what was made collectively could be promptly unmade individually.

It is next contended by the Carrier that under this record no retroactive compensation should be allowed. It is admitted that for a period of nearly three years after this agreement became effective, all concerned were content to let the straight eight-hour assignment continue and it was not until March 6, 1943, that the Organization filed any monetary claim. The record shows that on March 16, 1943, the Carrier corrected the violation.

"Insofar as the question of additional compensation is concerned, or the claim for a difference in wages between those received since July 1, 1935_ and those claimed, the Board submits that in view of the long-standing differences of opinion between the parties as to the proper application of Rule 19 and previous rules to the points at issue, of the sincere efforts evidenced by both carrier and employes to adjust such differences in a manner satisfactory to both parties to the agreement, of the fact that the employes affected are paid on a monthly salary basis, and that this claim had not previously been submitted for hearing before this Division, no retroactive award will be made for additional compensation, but that the future compensation of these employes through the proper application of the rule or rules involved be determined by and made the subject of negotiations between the parties."

"There is evidence that both parties were under some misapprehension as to the understanding reached during negotiation of the agreement as to the status of these claimants. When that fact became apparent an adjudication of the dispute should have been sought with more promptitude. The Board does not undertake to place responsibility for the delay but the circumstances surrounding this case are such as to justify limiting retroactive payments to the period subsequent to April 1, 1938, the approximate date definite claim was presented to the carrier."

"We recognize the prior awards of this Board relating to delays in presenting claims for acts which constitute continuing., violations of agreements. We have no quarrel with these prior awar, however, we do not feel that these Awards are controlling of the fact situation now before us. We do not hold that mere delay will preclude this Board from considering the merits of a claim, but what we do hold is, where there has been no protest of the carrier's acts and the delay has been so extended that the carrier is justified in believing the employes have concurred in its acts, and in this belief the carrier at the demand of the employes increases rates of pay, it is too late thereafter for the employes to demand of this Board that positions, long out of existence at the time the increase in pay was granted, or the work of these positions, should be restored under the increased rates of pay."

"When the present agreement was negotiated, the `tonnage rate' had been in effect at the Reading Transfer platform for fifteen years. Whether the Organization knew about it is immaterial. It is chargeable with knowledge of the working conditions and rates of pay existing at the time the agreement was negotiated. If it wanted the practice abolished the matter should have been made the subject of negotiation and agreement; and that is the only recourse the Organization now has. The Board cannot reform or alter the terms of the agreement.

To read Rules 17, 24, and 63 as the Organization would have us read them would be to inject into the agreement a meaning that is not expressed and cannot be inferred by any fair much less, necessaryimplication."

"The committee has called our attention to numerous awards which hold that repeated violations of a rule do not change it. There is no doubt of this principle. But repeated violations acquiesced in by employes may bring into operation the doctrine of estoppel or there may be a bar because of laches. Awards 1289, 1606, 1640, 1645. It seems to us that this is particularly true where the controversy concerns simply the rates of pay. Employes do not ordinarily accept wages over a period of a year and a half or longer without protest if they believe they are not receiving what is due them according to the terms of their contract. They should not permit an employer to continue in the belief that the agreement has been complied with and then after a long lapse of time enter a claim for accumulations of pay."

"* * * Those were the only rates of pay fixed either by agreement

' or arbitration. But he did not protest. For thirteen years, lacking ten days, he accepted the salary paid him, including two increases in pay, without complaint, either to his employer or to his Brotherhood. Only after he was removed from the position did he raise the question. True, the question is raised by the Brotherhood, but the Organization stands in no higher position, with reference to the claim, than does the person in whose behalf it is filed. Long and continuing violations of an agreement do not operate to change it, but acquiescence therein for long periods, as in this case, ordinarily sets up a bar to any claim therefor, especially wage claims."

"* * * No claim for monetary loss was ever presented until June 17, 1943. During all these years, the Organization acquiesced in the manner in which Carrier was classifying and paying Cafe Car Chefs. While this cannot change the agreement, it does have the effect of estopping a claim for monetary loss prior to the time actual demand was made therefor. We think the correct rule was stated in Award 2695, wherein we said: `We must adhere to the principle that the contract supersedes an existing practice and when the practice is continued after an agreement is made, the agreement may be enforced at any time even though the parties may have estopped themselves from any retroactive benefits by their acquiescence in the continuance of the practice'."

AWARD