uncertain duration, Mr. Wilderman worked both assignments for several days before the supervisors' attention was directed to what he was doing. When they became aware of it, she was immediately confined to working the Ventilation Clerk's vacancy.

As previously stated, Wilderman occupied the same status as the regular occupant of the Ventilation Clerk's assignment on September 18 and 19 and there is no rule in the Schedule requiring the payment of time and one-half to an employe for work performed on his assignment within the hours of that assignment (except on holidays, and no ,holidays are involved here).

The claims ;presented are not justified under the rules of the Schedule for Clerks and should be denied.

The substance of all matters referred to herein have been the subject of correspondence or discussion in conference between the representatives of the parties hereto and made a part of the particular question in dispute.

(Exhibits not reproduced.)

OPINION OF BOARD: The parties have agreed on the facts in this, case. Claimant held seniority on the Decatur Division as a Messenger in Group 3 as classified by the Agreement, and also in Group 1 covering Clerks. But he was regularly assigned to a Messenger position working from 7 A. M. to 3 P. M. By reason of absence of a Ventilation Clerk due to illness, Claimant was used to work this Clerk's position on September 14, 18 and 19 and certain other days with which we are not concerned here. On the three days in question he worked his own assignment until 3 P. M. and also the Ventilation Clerk's assignment beginning at 3:30 P. M. He thus was used to work 16 hours within a period of 24 hours.

For each of the two 8-hour assignments he was ,Paid the regular straight time rate. The claim is that the Carrier violated Rules 2 and 7 of the Agreement by not paying the overtime rate after he had completed 8 hours' work on each of the three days. These rules provide:

Rule 2 (a) "Eight (8) consecutive hours, not including the meal period, shall constitute a day's work.

Rule 7 (a) "All work in excess of eight (8) hours exclusive of the meal period on any regular work day will be considered overtime and paid on the actual minute basis."

(Paragraph (b) fixes time and one-half as the overtime rate, and (e) stipulates: "No overtime hours will be worked except by direction of proper authority. . . :')

Judged by these plain provisions, the violation charged and the claim for overtime pay, are clearly justified But the Carrier contends that a long established practice, accepted by the Employes and on which they have even based claims, has set aside Rule 7 and permits working 16 hours within 24 at straight time pay for the second 8-hour assignment. The provisions of Rule 7 have been in the Agreements between the Parties for about thirty years, and much of the record is filled with correspondence and discussion of a case that arose in 1939 and was settled on the property in 1942, which does show that the Employes not only accepted the practice, but in that case based their claim on it, though it was in plain violation of the Agreement.

Although the Employes argue in the present case that "The Clerks' Committee has never accepted nor agreed to the practice referred to by the Carrier," they nevertheless admit that they "are not in a position to dispute the fact that such a practice existed." They contend, however, that the "Committee, if not informed by the employe through filing of overtime claims,

have no definite knowledge of such violations and in most violations of this nature the individual employe is a party to the violation." The record shows that the Committee, as well as the Carrier, was responsible for permitting a practice to be estabished that was specifically prohibited by Rule 7.

This Division has repeatedly and consistently ruled that a practice in violation of the plain intent of a rule cannot be upheld. But we do not have to rely on those Awards in determining the instant dispute; for while the practice relied upon by the Carrier did exist, another practice existed at the same time which was in conformity with Rule 7.

There is in evidence a letter written by Division Superintendent Johnston during the processing of the 1939 case, which attests to the fact of the two contradictory practices existing at the same time. This letter, dated August 29, 1939, was addressed to the General Chairman in reply to a letter from him regarding the so-called "Gaunt Case." After stating that Gaunt "was not allowed to work his Caller's job (on April 20, 26, May 4 and 6) because he would have worked 16 hours within 24, which is prohibited," the Superintendent wrote;

"You advise that the overtime rule would not apply in such a case as this. However, within the last two years the Local Chairman of the Clerks at Peru has handled with us the necessity of paying clerks worked 16 hours within 24 time and a half for the second eight hours and within the past year we have paid a claim on the same basis. (Emphasis added).

"We have regularly worked clerks so that they did not perform 16 hours service in any 24 and it is not understood how you can interpret the rule one way in one case and then the opposite way in another case."

Apparently, therefore, there were two conflicting policies on this railroad, one in violation of theAgreement which continued to be protested locally; the other in conformity with it, and under the latter overtime was paid. The Carrier contends, however, that "a Division Superintendent is not authorized to represent the Carrier in placing interpretations on wage schedule rules * * * (and) that no officer authorized to represent the Carrier * * * took the position * * * that Gaunt would have been entitled to overtime had he been used in the manner contended by the Committee * * *" This is true enough. But the Superintendent was not interpreting rules when he stated that an overtime claim was paid and when he wrote that Gaunt was not allowed to work 16 hours within 24, "which is prohibited" unless overtime is paid after 8 hours. Ile was testifying to facts, and 'we believe he knew what was being done on the Division.

The record thus shows that the practice in the past was to pay straight time for working a second assignment on the same day in some cases, and to pay the required overtime in other cases. Such a contradictory policy does not constitute an authentic established practice which can be held to be an interpretation of Rule 7 mutually assented to by both parties. Moreover, the practice does not interpret the rule; its meaning being undisputed. The contention is that the alleged practice changed it to mean something else than what it says. No written agreement or memorandum of understanding was presented in evidence to prove that Rule 7, as it appears in the Agreement, had been changed by the parties.

Accordingly, the Carrier violated the Agreement, and the claim is valid.

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 the Agreement was violated.

AWARD