First Division Award No. 23904 (Fletcher) 

"Additionally, Carrier has argued that practices or acquiescences have obtained with regard to the lack of designation of local trains within its timetables and that several early claims were filed but not progressed. We have examined the material submitted in support of these points and find it unpersuasive. As stated in Award 36, PLB 1605, 'Silence, without more, does not establish condonation....' With regard to claims which were denied without further appeal, as a minimum, it must be shown that someone with authority within the Organization was aware of the denial, before it can be assumed that the Organization was acquiescent.

"In any event, the language of the Agreement is clear and unambiguous in meaning and intent. As we stated in First Division Award 23184:

"`Such contract language may not be ignored or modified by an alleged past practice, if one did exist.'

"The claim will be sustained."

First Division Award No. 21780 (O'Brien)

"However, it is a well established principle of contract construction that when the wording of a rule is clear, precise, and unambiguous no amount of practice contrary to the clear language of a rule can serve to nullify the provisions thereof. Such rule must be enforced as written. The Board finds that B.L.E. Rule 30 is such a rule. The very language of Rule 30 clearly classifies the setting out of bad order cars as switching on the part of a road crew when a yard engine is immediately available. The intent of Rule 30 is clear and unambiguous and is not to be altered by past practice nor by prior First Division awards."

Second Division Award No. 5675 (Ritter)

"This Board finds that the wording of the notice furnishes the key to resolving this dispute. This notice contains the words `will work June 27, 28, 29 and 30, 1966.' The fact that no claim was filed during the years 1965 and 1967 is not evidence that the Agreement was not violated during those years. This Board has repeatedly held that violations of an Agreement can not be condoned by proof of past violations."

Third Division Award No. 18957 (Edgett)

"The fact that no claim has been previously filed does not establish a binding practice which will defeat the claim. Practice may, of course, have such an effect in a proper case. Here, however, we simply have a matter which has gone unchallenged by one party. It is not possible to infer from this that mutuality which is required for the formation of a binding practice."

Third Division Award No. 20041 (Sickles)

"Awards of this Division have concluded that when material statements are made by one party and not denied by the other party, so that the allegations stand unrebutted, the material statements are accepted as established fact (especially when there is both time and opportunity to deny). See Awards 9261 (Hornbeck), 12840 (Hamilton), 14385 (Wolf). See also Awards 14399 (Lynch), 15035 (Franden) and 18605 (Rimer)."

Fourth Division Award No. 2939 (O'Brien)

"We cannot agree with Carrier's contention that past practice on this property should determine whether Rule 18 is applicable to the case at hand. Rule 18 clearly and unambiguously provides that `Supervisors transferring to positions which necessitate a change in residence...' It does not say when such transfers are due to promotion or displacement or when made at the request of the Company. The term transferring, as used therein, is not qualified nor made subject to any enumerated exceptions. Rule 18 is clear and unambiguous and must be applied as written. We have no authority to alter Rule 18 via interpretation by including therein exceptions that the parties themselves failed to include when they drafted the Rule. Rule 18 applies to transfers which necessitate a change in residence and this clearly encompasses claimant's transfer herein. If the parties wish to alter the clear terms of Rule 18 they must do so by negotiation for we are without power to do so."

Third Division Award No. 20990 (Blackwell)

"The requirements of Rule 19(d) are clear and unambiguous and thus the Carrier's allegation concerning past practice is no defense. It is so well settled as to require no citation of authority that a clear, unambiguous rule can be asserted at any time and that prior silence concerning rights under the rule will not defeat a meritorious claim. The claims will be sustained."

Third Division Award No. 21082 (Bailer)

"In support of its position on the above claims, Petitioner relies on Agreement Rule 24, Section II, B, (1) (a) and (2) (a) of the Schedule Agreement. These provisions of the cited rule are quoted in both parties' submissions. But the 8-hour minimum punitive pay time urged by Petitioner is subject to certain specified conditions, one of which is that the involved position is `regularly required to work three hours or less on Sundays' ((1) (a)); or `on such other designated rest day' ((2) (a)). Neither of the positions held by claimants met the applicable `regularly required' condition specified in the respective portions of Rule 24. The language of the rule being clear and unambiguous on the matter at issue, any past practice to the contrary cannot be considered controlling."

Third Division Award No. 19846 (Hayes)

"The Board is aware of Carrier's argument that there has been a practice for all remodeling above the track level floor to be performed by Station Maintainers or contracted out with their concurrence. As to this argument, we would point out that the Board has often held that where provisions of an agreement are clearly unambiguous they shall prevail over conflicting practices. Consequently, even if Carrier is right about past practice, we cannot remove work from the scope of the agreement covering B&B employees because their rule is unambiguous."

Third Division Award No. 30740 (Sickles)

"The Carrier argued a prior practice in defense to the rather clear Agreement language. Thus, it assumed a burden which it did not carry."

Third Division Award No. 29890 (Vernon)

"The Carrier has not pointed to any section of the Agreement which either modifies or offers an alternative procedure to the mail provision. The Carrier has presented evidence of a past practice of notifying employees by telephone, and those without telephones being required to all in. However, as the Board has repeatedly found, past practice cannot offset clear and unambiguous language to the contrary. Third Division Awards 23130 and 25310 are particularly instructive in this respect. In 23130 the Agreement at issue required furloughed employees to submit a name and address in writing for recall eligibility. The Carrier had asserted a longstanding practice of contacting furloughed employees by telephone. The Board stated that 'it is well-established that even where a past practice is proven, it cannot offset clear and unambiguous language drafted by parties to the contrary. In this case, while it may have been the Carrier's practice to contact furloughed employees by telephone - and obviously it is more convenient, this does not relieve the Carrier or its contractual responsibility to do so formally.' If a position needs to be filled pending mail notification to an employee without a telephone, a junior employee may be used until the senior employee returns." (Emphasis added)