positions, pursuant to Article 7 (a), Claimant was entitled to 8.5 hours per day at the straight time rate while he was on vacation.

The Organization puts heavy reliance on Third Division Award 4498, which held in part:

"That Article 7 (a) of the Vacation Agreement contemplates that the daily compensation could be something more than the assigned rate of the position is, evident from a reading of the agreed-upon interpretation to Article 7 (a).

he latter evidences an intention that ail compensation earned on the position except casual or unassigned overtime, fixes the compensation to be paid during the vacation period."

Carrier's position can be summarized as follows: What Claimant is seeking here is not his normal rate of pay for vacation, but the extra 30 minutes of meal allowance granted to employees in his classification under the 1990 Letter of Agreement. That letter merely extended Rule 6 (d) to Claimant's class for not eating at scheduled times - and the terms of Rule 6 (d) only confer an additional 30 minutes at straight time rates "for each shift worked." Because there is no deprivation of the 20 minute meal period while on vacation, the condition for which the meal period allowance was intended to compensate is lacking. Moreover, during the five years the Vacation Agreement has been in effect, never once has Carrier paid vacations other than as it did in this case, and not a single objection has been raised. Nor have employees eligible for this allowance ever received the extra payment when work shifts have been missed for reasons other than vacation.

The Carrier cites Fourth Division Award 2799 in support of its position. In that decision, the Board found that "the meal period allowance is conditional and only comes into play when a yardmaster is not afforded an opportunity for an interrupted [sic] twenty minutes meal period between certain hours of work. The prescribed condition is not satisfied when the yardmaster is on vacation and clearly is not part of his pay during that period."

For the sake of continuity, the Board turns first to an examination of Award 2799 that Carrier sees as controlling. The Board in that dispute held that lunch allowances were inapplicable during vacation based upon the following language of the applicable Agreement: "Yardmasters who are not afforded an opportunity for an uninterrupted

meal period of twenty (20) minutes between the ending of the fourth and beginning of the seventh hours after starting work . . . shall be paid an allowance of twenty (20) minutes at the time and one-half rate of the position."

In this dispute, the identical issue facing the Board in Award 2799 is before us, but the language by which the parties chose to accomplish their objectives is more ambiguous and makes the bar code trickier to read. Here the difficulty of setting regular meal schedules for CDCET's prompted an Agreement to place them under the terms of Rule 6 (d). That Rule unequivocally provides an additional 30 minutes pay for each "shift worked." It does not provide an additional 30 minutes pay for each workday missed, whether for vacation or otherwise. And, as suggested, the principle underlying Award 2799 - the missing of the meal is the consideration for the extra pay - is manifest here, although the parties' Letter of Agreement contains the distinguishing gloss that placing CDC Electronic Technicians under Rule 6 (d) "will have the effect of giving each CDC Electronic Technician an additional thirty minutes' pay per day ...."

The issue, then, boils down to this: Did the parties by their 1990 understanding intend to establish a new "daily compensation" rate for people in Claimant's classification? Stated another way, was the intention of the drafters to provide an extra half hour of pay in lieu of a paid meal every day, or just every workday?

The parties' positions are unquestionably both strong, and in our view in near equilibrium. On the one hand, the Organization contends that the issue has already been resolved by Award 4498, which on its face establishes overtime as the only pay component excepted from "daily compensation" for purposes of vacation pay. (The term "daily compensation" appears to be undefined in the Agreement.) On the other, the Carrier directs the Board to Award 2799 rejecting an analogous claim substantially on the time-honored basis of failure of consideration.'

Under these circumstances, while the Board believes the enshrinement of past practice often presents the slipperiest possible basis for decision making in disputes not

'Although Fourth Division Award 2799 rendered October 19, 1972 long post-dated Third Division Award 4498 rendered July 29, 1949, it does not appear that the Board considered it in its analysis.

heard e n vo the conduct of the parties in applying the 1990 Letter of Agreement over the years is useful in understanding the intent of that arrangement.

The record reveals that for more than five years, no vacationing CDCET received pay for eight and one-half hours daily while on vacation. Second, no objection was ever raised to such application of the 1990 understanding prior to submission of this claim. And third, the meal premium has never been considered earned on other days when no work is performed but for which pay is generated.

The administration of the Agreement, therefore, appears to meet the traditional tests the cases never tire of reciting as applicable before past practice may be considered as binding: it is an unequivocal, established one; it has been accepted by both parties over a reasonable period of time; and it is not flatly inconsistent with any contractual provision.

Examination of past practice, then, favors denial of the claim. That result can be harmonized with the provisions of the Agreement because the actual rendering of services as a condition for eligibility is perfectly consistent with Rule 6 (d). It is also consistent with the 1990 Letter of Agreement if "pay per day" is read to mean pay "for each shift worked" as Rule 6 (d) contemplates. And it is consistent with Appendix 1 as well, because it rests on a finding that the parties did not intend to make the additional 30 minutes a part of "daily compensation," but considered it as in the nature of overtime for services performed, and therefore included within the express exceptions to "daily compensation" as.that term was interpreted by Award 4498.

The practical import of that reading is in the view of the Board also compelling. The purpose of the 1990 Agreement was to protect the earnings of CDC Electronic Technicians and correlate them with those of their fellow employees.' Without it, CDC

' In regard to equating CDC Electronic Technicians' terms with those of other employees, when it agreed to consider Claimant's classification as falling within the purview of Rule 6 (d), Carrier committed to treating them the same as "General C.T.C. Maintainers" and "Retarder Yard Maintainers," who also apparently do not have assigned meal periods. The record of case handling on the property is silent with respect to the question of how vacation pay for those classifications, if they are still utilized, is (continued...)

Electronic Technicians would spend a full eight hours on duty, work through their meal period, and get paid for eight hours. Other covered employees would spend seven hours and 40 minutes on duty, take scheduled breaks, and get paid for the same eight hours. Secondly, it would be somewhat anomalous for the parties to have intended that working time lost because of, for example, sick leave, would not generate the 30 minutes of pay at issue, but vacation time would. In short, as found in Award 2799, while Claimant is on vacation and not working, the monetary value assigned to the discomfort of not eating at scheduled times away from his work area is not relevant.

For the reasons recited above, the claim must be denied.

AWARD