"Considering all the circumstances-the fact that the practice had been established for many years before the first agreement was made, instead of being introduced afterwards; the fact that a rule was later sought by the employes permitting that practice but with pay rates unacceptable to the carrier; the fact that subsequently another agreement between the parties was made without reference to the practice one way or the other; and the fact that the first protest was not made until 1938; we think that while the case is a very close one the evidence is sufficient to establish a definite acquienee, amounting to an understanding . . .

Attention is also directed to your Board's Awards 1489 and 1651, as well as to First Division Awards 8146, 8169, 10084, 10252, and 10326, as mentioned in letter to General Chairman Canafax of November 9, 1946, hereinabove quoted.

(Exhibit not reproduced).

OPINION OF BOARD: This is a joint submission in which the decisive facts are not in serious conflict. For the moment it suffices to say both parties are agreed that on certain dates since August 13, 1946 the telegraph operator at Bonham, Texas, a one-shift office, received train orders and clearance cards from the train dispatcher and, on orders from the Carrier, pinned such orders and clearance cards on the conductor's train register for delivery after the expiration of his regularly assigned hours of duty.

The claim is based on Article 20 (d) of the current Agreement effective May 1, 1939, commonly known as the Train Order Rule, which, so far as pertinent to the issues here involved, reads:

"No employe other than covered by this agreement 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 employe entitled to call will be notified."

The Order of Railroad Telegraphers takes the position the handling of train orders and clearance cards in the manner heretofore described is a violation of such Article and entitles the telegrapher at Bonham to pay for a call on all dates violations occurred. The Carrier takes a contrary view and seeks to sustain it upon two propositions. The first of these is that the phrase "to handle train orders" as used in the rule does not contemplate or require the personal or hand to hand delivery of such orders and cards. The second is that such term has never been construed to mean anything other than the copying of train orders or clearance cards on its property, hence, even if its first position is not sustained, its long established practice of handling such items by pinning them on the conductor's train register for delivery has superseded the requirements of the rule and is enforceable to the same extent as if it was a part of the contract itself.

We are not disposed to labor long on the Carrier's first point. This Division of the Board, after extended and spirited debate on the subject, is now definitely committed to the view that a Train Order Rule containing language of the kind to be found in the one now under consideration is clear and unambiguous and that its terms, particularly the phrase "to handle train orders", are to be construed as contemplating the receiving, the copying, and the delivering of train orders to the train crews which are to execute them. See Awards 86, 709, 1166, 1422, 1680, 1713 1878, 1879, 2087, 2926, 2928, 3611, 3612, 3670 and 4057. Also see Award 4770, where, although the claim was denied on the ground it was based on the Scope Rule only, the foregoing interpretation was again approved and it was definitely indicated that had the Agreement contained a Train Order Rule similar to the instant one a sustaining award would have been required.

Thus under our decisions, it appears that unless Carrier's second contention is sustained, its action in requiring the telegrapher at Bonham to pin train orders and clearance cards on the conductor's train register for delivery violated the Agreement.

Before giving consideration to that point we turn again to the record. The situation there disclosed can be summarized in the following manner.

The Carrier and the Employes have entered into three collective Agreements. The first was executed in 1924, the second in 1928 and the third, as has been indicated, was negotiated and signed in 1939. Article 20 (d) in its present form was incorporated into and made a part of each of such contracts. The fact is that prior to the negotiation of the first contract in 1924 the Carrier was requiring telegraphers at its smaller offices to do the very thing now complained of as a violation at its Bonham office and that it continued to do so thereafter even after negotiation of the succeeding Agreements. However, it appears that for some reason the requirement was not put into force and effect at Bonham until about seventeen years ago. No complaint was made by the Employes until September 7, 1946 at which time the instant claim was P_resented to the Carrier on behalf of Telegrapher Jenkins at its Bonham office. This it should be added was the first claim of its kind the employes had ever made under any of the Agreements. The claim was denied by the Carrier on November 9, 1946. Some four months later, on February 4, 1947, the Organization's General Chairman inquired if the Crrier's representative was agreeable to joining in a joint statement of facts preparatory to the filing of a

joint submission on the claim. An affirmative answer was given. The claim, however, was not progressed to this Board until December 12, 1949. We pause here to add that fairness, and at least a portion of our decision, requires tbp statement that so far as the record discloses the responsibility for the greater portion, if not all, of this delay of considerably more than two and one-half years cannot be laid at the Carrier's door but must be attributed to the Employes' representative who was handling the claim.

The sum and substance of the first argument advanced by the Carrier in support of its second point is the record establishes that throughout all the years since the negotiation of the first contract there had been an express understanding and agreement between it and the Organization representing the employes to the effect, the Agreements notwithstanding, it could require the telegrapher at Bonham, and like offices, to make delivery, after assigned hours, of train orders and clearance cards received from the train dispatcher by pinning them on the conductor's train register. We do not agree. Neither do we concur with the Organization's contention it did not know of what was going on. The very most that can be said for the record from the standpoint of either of them is that while the Organization knew the practice existed it stood by and merely acquiesced therein without complaint. Nor do we subscribe to the Carrier's view that the practice must be regarded as having been established and in force and effect for anywhere near as long as it contends. Where a new contract is negotiated and existing practices are abrogated or changed by its terms the practice falls as of the effective date of the contract. Here both the 1928 contract and the 1939 (current) Agreement as negotiated contained a Train Order Rule (Article 20 (d) ) providing in clear and concise language that no employe other than covered by such Agreements would be permitted to handle train orders at telegraph or telephone offices, etc. Thus, under our decisions interpreting the phrase "to handle train orders" as used in the rule, it must be held that since May 1, 1939, the effective date of the last Agreement, whatever practices existed prior thereto, were expressly abrogated. They may have continued since, through acquiescence on the part of the employes, but that does not effect the fact they ceased to exist for all contractual purposes as of that date. The point is only important to demonstrate that under the existing situation the employes are not chargeable with the long continued acquiescence relied on by the Carrier.

Under the conditions and circumstances reflected by the record we are convinced the Carrier's final contention on its second point to the effect the practice supersedes the Agreement cannot be upheld. Under our decisions, except where an agreement is ambiguous or indefinite, past practices do not affect enforcement of and compliance with its applicable provisions. See Awards 1671 and 2626. Article 20 (d), as we have seen is clear and unambiguous. In other words with such a contract in existence and governing the rights of the parties neither long continued acquiescence in a practice nor mutual continuance thereof after it has become effective bar its enforcement for the simple reason its provisions supersede any and all practices incompatible therewith. They may have the effect of precluding the parties from collecting penalties because of the violation but they do not preclude them from insisting upon compliance with its terms (See Awards 3521, 3979, and 4926).

The claim is for payment of a call for each day claimant has complied with the Carrier's requirement respecting the matter here in question, since August 13, 1946. In view of the following facts: (1) that the involved practice has long been acquiesced in by the Employes; (2) that despite unrefuted evidence of its existence since the effective date of the last Agreement, with knowledge on the part of the Employes, this is the first claim which has been submitted to the Carrier under Rule 20 (d); and (3) that delay in the prosecution of the claim for more than three years after it was first presented, for which it was not to blame, gave the Carrier some reason to believe the Employes were given to abandon the claim and continue to acquiesce in the practice, we feel the equities of the existing situation will be fully met if,

within twenty days following the date of this Award, the interpretation herein placed upon Rule 20 (d) will be controlling, without reparation for violations prior to such date. It is so ordered.

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 Carrier violated the provisions of Rule 20 (d) of the current Agreement, but that the existing facts and circumstances do not warrant a reparation ward.

AWARD