With regard to Employes' Exhibit 7, Carrier not only points out that nowhere in those letters is there any mention of a case of an employe who fills his own assignment and then works overtime to take care of the work of another employe's assignment but also points to Carrier's Exhibit 17 which is also a letter from Mr. Walber in which he dwelt at length on such overtime cases. That letter was written on December 6, 1935, the same year, but after his correspondence with General Chairman Price (Employes' Exhibit 7), and it is very evident from his expressions therein that it was not his understanding that the question and answer interpretation adopted in September, 1934 had any bearing whatsoever on the case of the employe who works overtime in addition to filling his own assignment.

Furthermore, the ruling made by Mr. Walber in Exhibit 17 was entirely consistent with the rulings contained in other exhibits. In fact, Mr. Walber referred to Docket 217 of the Wage Committee which is Carrier's Exhibit 12.

The Clerks' Committee in the Buffalo territory accepted Mr. Walber's ruling in the Exhibit 17 case, and it was closed accordingly.

CONCLUSIONS.

Carrier has shown-

a. That there has been a definite and consistent practice, acquiesced in by both Line East and Line West committees over a period of many years;

b. That Claimant Schemehl was paid in accordance with said practice;

c. That said practice is equivalent to a negotiated rule and can only be changed through the serving of 30 days' notice and subsequent, meeting of the minds;

d. That the employes have served no such notice, or otherwise made an effort to follow the orderly course under the Railway Labor Act., but have chosen the unorthodox course of denying responsibility for settlements made by deceased General Chairman Robertson, one of which is filed as Carrier's Exhibit 18, and also of repudiating the interpretation of the rules given to Carrier b;J General Chairman Winston, Carrier's Exhibit 13;

I;If the employes can escape their obligations and responsibilities in this manner, any agreement or settlement with Carrier could be upset by merely-changing committeemen or representatives.)

e. That the aforesaid recognized practice was adopted from and based upon decisions and interpretations of the Railroad Labor Board which for 20 years and more the Line East and Line West committees accepted as controlling;

f. That this dispute should be decided by the Adjustment Board on the record herein presented and not upon the basis of situations or conditions which it may have found on other railroads.

(Exhibits are not reproduced.)

OPINION OF BOARD: J. G. Schemehl, a clerk at the Carrier's 33rd Street Yard, New York City, on three different days in 1943 worked his own trick, then the trick of another higher-rated employe who was sick. The Carrier paid Schemehl overtime on the basis of his own rate. The Organization claims his overtime should have been computed on the rate of the job he filled while working overtime, and cites Rules 30 and 38 (Overtime and Preservation of Rates).

The Carrier relies on past practice and a number of decisions of the long-deceased United States Railroad Labor Board.

True, this Board in Award 1246 stated that "if an agreement is susceptible to two different meanings then what the parties have done under it would be the proper interpretation of the rule". If Rules 30 and 38, read together, were susceptible to two different meanings, then, this Board should look with a great deal of sympathy on the Carrier's argument of past practice. The same basic question presented here has arisen several times on the Carrier's property, and each time it was settled as the Carrier contends the case before us should be settled. Once this conclusion was reached on the basis of an opinion from an official of the Organization, and at least one other time with the Organization's acquiescence. However, all of these calls for interpretation, as far as the record shows, came in the 20's and 30's, the last in 1936. They are not governing now, in view of the clear meaning of Rules 30 and 38, read together.

Nor are decisions of the United States Railroad Labor Board, now defunct. They may properly be cited for what they are worth in shedding light on cases before this board, just as old English court decisions are frequently cited in our judicial processes. They carry that much weight, and no more.

We will find that Clerk Schemehl was clearly entitled to time and onehalf the higher rate for those hours he substituted in the higher rated position, in accordance with Rules 30 and 38, read together as they must be.

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 parties waived oral hearings thereon;

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 Rules 30 and 38 of the Agreement, read together.

AWARD

Claim sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division