dated at Chicago, Illinois March 19, 1949, and specifically changed rules of the effective clerical agreement, Rule 25 in particular.

(c) While carrier has, as an accommodation released employes from duty prior to the established quitting time on many occasions on December 24, such action did not establish a working condition or condition of employment. Furthermore, on many occasions certain employes worked and were not permitted to be off with the majority. In no case has any employe been allowed additional compensation for working his regularly assigned hours on December 24.

(d) The effective clerical agreement was not violated. The claim is nothing more than an effort by the Brotherhood to obtain a new rule or working condition by Board decision rather than through negotiations as provided by law.

(e) The penalty of two and one-half times straight time daily rates for four hours on December 24 constitutes claim for a penalty which is neither authorized by the effective clerical agreement nor supported by prior Board awards.

Claim not being valid should in all things be denied, and the Board is urged to so hold.

All relevant facts and arguments involved in this dispute have been made known to employe representatives.

(Exhibits not reproduced.)

OPINION OF BOARD: In 1928 the Carrier moved its Freight Accounts office from Washington, D. C., to Atlanta, Georgia, and in 1932, consolidated its Cincinnati Freight Accounts office with the latter office.

The Organization contends that from 1921 to 1950 it was the consistent practice of the Company to release its employes in the above offices at noon on December 24, the day before Christmas, without any reduction in pay; that this practice amounted to a contractual obligation to that effect on the part of the Carrier; but that on Monday, December 24, 1951, the Carrier wrongfully required the employes to work the full eight-hour period, thereby entitling them to be compensated for four hours at the time and one-half rate.

The facts show that since 1921, with a few exceptions, it has been the practice of the Carrier to release the employes in the offices referred to above at approximately noon on the day before Christmas. From 1921 until 1940 the employes were released, in most instances, at 12:00 noon, but from 1940 to 1950 they were consistently released at 1:00 P. M. There was an instance or two when the employes worked eight hours on the day before Christmas but were subsequently released for a half day, in lieu thereof. What we have said has no reference to those occasions when the day before Christmas fell on Saturdays or Sundays and the employes were off for the full day without pay under other provisions of the Agreement. On Wednesday, December 24, 1952, the employes were again released at 1:00 P. M.

During the period covered by the alleged practices there were four negotiated revisions of the agreement between the Carrier and the Organization representing the Claimants, all antedating the 40-Hour-Week Agreement of 1949, to-wit: in 1921, 1924, 1926, and 1938. The 1938 Agreement provided that it did not, "unless rules are specifically changed, alter practices or working conditions established by or under former Agreements." That is to say, the Agreement in effect on December 24, 1951,

when the alleged violation occurred, did not preclude the recognition or establishment of binding practices, unless such were forbidden by the 40-Hour-Week Agreement of 1949. We shall pass, for the moment, the effect of the 40-Hour-Week Agreement and consider whether, aside from it, the facts justify the conclusion that a binding practice existed on December 24, 1951.

The Carrier's answer to the Claim is that the alleged practice relied on by the Organization amounted to nothing more than a mere gratuity on its part; and that since Rule 24 (a) of the 1938 Agreement and paragraph (a) of Rule 25 of the 40-Hour-Week Agreement are clear and unambiguous, there could be no practice contrary to their terms. We shall consider the$e points in order, and our answers to them are as follows:

(1) The long indulged practice of releasing the employes at noon on the day before Christmas was sufficient, in point of time, to evidence a common understanding that this had become and would continue as a working condition, and the variations, from 12:00 noon to 1:00 P. M., when the employes were released is not, in our judgment, such a departure as to substantially affect the continuity of the practice.

(2) The fact that the practice had its inception as a gratuity on the part of the Carrier is of no consequence under the holding of this Board in Award 2436, where is was said:

"The claim of the carrier that these practices originated as mere gratuities is not a controlling fact. We do not doubt that many recognized practices were first considered as favors or gratuities and by long continued usage became such an integral part of railroad transportation as to deserve the name of 'practice'. A continuous recognition of them for 25 to 40 years, whether or not they had their beginnings as favors or gratuities, or as the result of oral understandings leads us to the conclusion that they are at the present time practices in the sense in which that term is used in the railroad industry."

(3) Rule 24(a) of the 1938 Agreement simply provides that eight consecutive hours, exclusive of meal period, shall constitute a day's work. We regard this Rule as merely prescribing the maximum length of a normal work day. There is nothing in the Rule that we can perceive that precludes the parties from establishing a shorter period for a work day or from precluding the Carrier from paying for eight hours when less than eight hours are worked. In other words, taking into account the evident purpose of Rule 24(a), we do not believe a mutually acceptable arrangement whereby the employes should be released at noon on the day before Christmas would do violence to the Rule.

(4) Neither do we think that the oft-expressed principle to the effect that the clear and unambiguous provisions of an express rule cannot be varied by past practices has any application here. The Organization is not contending that there has been any modification of the requirements of Rule 24(a), which prescribes that an employe may be required to work eight hours to constitute a work day. All the Organization is saying is that by reason of a long continued practice the Carrier has recognized that for one particular day, the day before Christmas, it will release these employes at noon and will pay them for eight hours notwithstanding.

(5) Much of what we have said about Rule 24(a) is equally applicable to paragraph (a) of Rule 25, which came in to the

Agreement as a consequence of the 40-Hour Week. The Carrier relies on the fact that Rule 25 provides that a work week consists of five days of eight hours each; and again, we observe that there is nothing in that formula that precludes a carrier from paying an employe for eight hours work although only four hours service is performed. Our conclusion in this regard is fortified by Decision No. 17 of the 40-Hour Week Committee which, although involving a different carrier, is highly persuasive. If the Carrier can voluntarily pay for eight hours service when only four hours work is performed, without violating the Agreement, as it apparently did for December 24, 1952, we can conceive of no reason why it cannot obligate itself to do so either by formal contract or by long continued practice. A provision of a contract resulting from long continued practice, if duly established and not forbidden, is as much a part of the Agreement as one in writing.

Award 5005 of this Board is in accord with our conclusions, but the Carrier says that it was, in effect, overruled by Awards 5278 and 6469. A reading of the two Awards last mentioned indicates that they are predicated on the proposition that past practices cannot modify the express terms of a written contract. With that principle we do not find it necessary to disagree although there is respectable authority to the contrary. We go no further than to hold that notwithstanding the existence of contractual provisions relating to the forty-hour week and the eight-hour day as presently existing, parties could and did by long continued practice create an exception thereto with respect to the day before Christmas.

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 Carrier violated the Agreement to the extent indicated in the Opinion.

AWARD