Award 1062-Second Division

In Award 757 this Board said:

"It is well settled by many decisions of this and the First Division * * * that as an abstract principle a carrier may not let out to others * * * work of a type embraced within one of its collective agreements with its employes * * ' as a basic legal principle the contract with the employes covers all the work of the kind involved, except such as may be specifically excepted; ordinarily such exceptions appear in the scope rule. But the decisions likewise recognize that there may be other exceptions * * *."

"In Award 615 of this Division, the question was fully discussed in a controversy as to the right as between clerks and telegraphers to do certein clerical work. Although there was no written. limitation in the Clerks' Agreement it was found that in the light of all the circumstances such a limitation existed as a fact and it was deemed that the Clerks' Agreement was entered into in the light of such limitation."

Award 757-Third Division

"* * * a practice uncontested over a period of years must justly be regarded by such party as indicating the course of conduct for it to follow * * *."

Award 1082-First Division

"an appraisal of their practical construction of the working agreement by conduct."

322 U. S. 723

"Conduct may be, frequently is, just as expressive of intention and settled conviction as are words, either spoken or written."

Award 1435-Third Division

"Such a delay indicates concurrence in construction of agreement made by the Carrier."

Award 8145-First Division

For reasons heretofore stated, claim should be denied.

Exhibits not reproduced.

Many reasons for denial of the claim ale asserted by the Carrier and no attempt will be made to mention or discuss all of them in this opinion. It will suffice to say they have each been examined and that only one of them, to which we will presently give attention, has been found sufficiently meritorious to compel the sustaining of its position.

Carrier contends the practice of Dispatchers issuing train orders direct to Conductors of trains operating on the Bangor and Portland Branch for merly The Bangor and Portland Railway, was in effect prior to the merger of .such railroad and the Carrier in 1909, and continued on such Branch up to the date of the incidents giving rise to the instant claim with the knowledge, consent, acquiesence and approval of the Brotherhood; that in January 1940 the parties negotiated and executed a new contract the terms of which made no mention of, and of a certainty did not abrogate, the practice; that such practice continued long after the execution of the 1940 contract; and that as a result irrespective and regardless of the force and effect to be given the terms of the scope rule of such Agreements, the practice of issuing train orders direct to conductors of trains operating on the Bangor and Portland Branch instead of to Telegraphers must, by virtue of the construction and interpretation placed upon the contract as evidenced by the acts and conduct of the parties themselves, be regarded as excepted from such scope rule.

Passing the factual phases of the Carrier's contention for the moment let us turn to the rules it seeks to apply to them.

One of these rules, now so well established by Awards of this Division as to almost preclude necessity for their citation, is that when a collective bargaining contract is negotiated and existing practices are not abrogated or changed by its terms such practices are just as enforceable as if they had been expressly authorized by the terms of the instrument itself. See Awards 2436, 1435 and 1397.

Another well recognized principle is that after a contract has been executed the conduct of its signatories is often just as- expressive of their intention and the construction they place upon its terms as the written words themselves and where uncertainty exists, the mutual interpretation given it by the parties as evidenced by their actions with respect thereto, affords a safa guide in determining what they had in mind when it was executed. Sec Awards 2436 and 1435.

Turning again to the facts upon which Carrier's position is based, while it is true there is no unanimity between the parties with respect to them, it can be stated without fear of contradiction the record discloses the practice in question existed and was indulged in on the Bangor and Portland Branch up to 1940 without complaint on the part of the Organization during which time two contracts, one in 1919 and one in 1940, were negotiated without abrogation thereof or reference thereto. Likewise, added that for approxr rnately six years after the 1940 contract became effective such practice was not actually contested by the Organization and, so far as the record shows, no claim was made against the Carrier for action taken in connection therewith.

Notwithstanding what has been heretofore stated, if that was all err which our decision could be based, we might have some difficulty in concluding the claim must be denied on the single ground to which we have heretofore referred. But it is net. rollowing the filing of a claim against the Carrier for the three calls herein involved the Organization and the Carrier, entered into a new working Agreement, effective November 1, 1947. Article 3 of such Agreement refers specifically to train orders and provides:

"No employe other than covered by this schedule and train dispatchers will be permitted to handle train orders at telegraph or telephone offices where an operator is employed and is available or can be promptly located, except in an emergency, in which case the telegrapher will be paid for the call."

"The effective date of this rule on the Bangor and Portland Branches is April 1, 1948." (Emphasis ours).

In our opinion the Article just quoted, particularly the language underlined for purposes of emphasis, definitely indicates that any and all rights the Organization may have had under the 1940 contract with respect to the practice of Conductors copying train orders were merged in the new Agreement. Of a certainty such language clearly evidences the parties themselves did not regard such practice when limited to the Bangor and Portland Branches as being in violation of pre-existing Agreements. In either situation our duty is clear. The claim must be denied.

In conclusion it should perhaps be stated this Award is limited strictly to the facts and the particular properly herein involved and is in no .sense to be regarded as impinging upon what was said and held in Award 3114.

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 record discloses no sound basis for an affirmative Award.

AWARD