Full opinion text
GOURLEY, District Judge. This is an action on collective bargaining agreements negotiated and executed by the employees’ representatives of The Pittsburgh and Lake Erie Railroad Company with said Company. It presents for decision novel and important questions arising out of said contracts which were negotiated and executed in accordance with the provisions of the Railway Labor . Act, June 7, 1934, c. 426, 48 Stat. 926, Jume 21, 1934, c. 691, § 1,'48 Stat. 1185, June 25, 1936, c. 804, 49 Stat. 192Í, Aug. 13, 1940, c. 664, §§ 2, 3, 54 Stat. 785, 786, 45 U.S.C.A. § 151 et seq. The contracts or bargaining agreements which are involved in this proceeding were negotiated and executed on January 12, 1928 and November 17, 1936. The plaintiff employees were represented by the Brotherhood of Railroad Trainmen (BRT), and the Order of Railway Conductors (ORC) in the 1928 Contract, and the Order of Railway Conductors in the 1936 Contract. Under the Railway Labor Act which sets’ up the procedure and method by which an .employee of a carrier, who is aggrieved concerning his labor relations, may submit the grievance to the Railroad Adjustment Board, the remedy afforded is not exclusive and the employee may bring suit at law to settle a dispute without first submitting the controversy to the Board. 45 U.S.C.A. § 151 et seq. There is nothing in the Act which purports to take away from the courts the jurisdiction to determine a controversy or to make an administrative finding of the Board a prerequisite to filing a suit in court. Kelly v. Nashville C. & St. L. R., D. C., 75 F.Supp. 737; Adams et al. v. New York C. & St. L. R. Co., 7 Cir., 121 F.2d 808, 810; Moore v. Illinois Cent. R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Beeler v. Chicago, R. I. & P. Ry. Co., 10 Cir., 169 F.2d 557; Union Pacific R. Co. v. Olive, 9 Cir., 156 F.2d 737. The ultimate issues relate to: (a) The interpretation and construction of the 1928 and 1936 Contracts. (b) The authority of the collective bargaining representative (BRT) to compromise or settle accrued claims of the plaintiffs who— (1) were members of the collective bargaining representative and (2) were not members of the collective bargaining representative. Parties to Suit Plaintiffs The plaintiffs are 133 conductors (also known as yard foremen) and brakemen (also known as helpers) who are and for a long time have been employees of The Pittsburgh and Lake Erie Railroad Com-, pany, defendant. They are called, generally in railroad parlance, “trainmen.” The major question involved relates to whether the plaintiffs were or were not entitled to extra pay from defendant at the rate of an additional day for each day in which the plaintiffs coupled air hose at points where air or car inspectors were available. The rights of action of the plaintiffs are based upon either, or both, of two certain written collective bargaining or employment contracts which contain the same provisions as to the basic claims of the plaintiffs. (a) Claims of three of the plaintiffs are based exclusively upon a contract executed in 1936 by the defendant railroad with the Order of Railway Conductors, the certified bargaining agent of the conductors during the entire period covered by this suit. (b) Claims of eighty-seven of the plaintiffs are based upon a contract made in 1928 by the defendant corporation with the Order of Railway Conductors and the Brotherhood of Railroad Trainmen. (c) Twenty of the plaintiffs were conductors who were engaged partly in road work and partly in yard work, and thus their claims are in part under one of the said contracts and in part under the other. (d) Twenty-three of the plaintiffs were conductors who were engaged partly in yard work and partly on work trains (that being a class of road work), so that those twenty-three plaintiffs — as do the twenty plaintiffs last above mentioned — claim in part under one of said contracts and in part under the other. A summary of the numbers of the foregoing groups is as follows: Group Road service exclusively, all claims under the 1936 contract Yard service exclusively, all claims under the 1928 contract Both road and yard service, claims under both contracts Yard service and work train (type of road service), claim's under both contracts Total number of plfs. Number of Plaintiffs 3 87 20 23 133 . Historical Background of Defendant Since 1879 The Pittsburgh & Lake Erie Railroad Company has owned, operated and maintained a railroad system, having one western terminus and two eastern terminii. Throughout the length of the railroad there >are no considerable stretches of territory where there are no sidings or spurs required to effectively serve the industries and businesses adjacent to the track. The main line is approximately one hundred sixty-eight (168) miles in length. The railroad system has been divided into three divisions, to wit, The Pittsburgh & Lake Erie, Monongahela, and Youghiog-heny divisions. The defendant railroad cannot be classified with the other two railroads supplying passenger and freight service to the Pittsburgh area, viz.: Pennsylvania and Baltimore and Ohio railroads which extend over a much greater territory. The tracks of both the Pennsylvania and The Baltimore and Ohio run for great stretches through territory where there is no industry, of any kind abutting the tracks, nor to which there are any sidings. Prior to 1915 it was decided that for the efficient operation of the railroad and better service for its customers, the main line of the railroad should be divided into nine general yards. The limits of these yards were largely determined by the various concentrations of the mines, mills and factories that were served. In addition, the division of the railroad into general yards permitted the more effective assignment of yard crews to take care of certain blocks of work. Defendant railroad is unique among the trunk line railroads in the United States in being the only one whose main line trackage is divided into a series of nine contiguous general yards. From 1940 through 1944 each of the general yards was under the jurisdiction of a separate general yardmaster. A general yardmaster has jurisdiction over all the train and engine yard forces, the breaking up and making up of trains, and the performance of the industrial work within the general yard limits. He is the highest operating officer in the general yard. Each general yard contains smaller yards. The smaller yards within the general yards are under the immediate direction and control of trick or turn yardmasters, who are subordinate to the general yardmasters and who have jurisdiction over one or several of the smaller yards. A general yard is a section of yards from one point to another on the railroad, while a yard is one or more tracks or succession of tracks used for the make up and classification of trains and storage of cars. Services Involved "Coupling Air Hose” The process of coupling air hose normally takes less than half a minute. The act of coupling air hose consists of joining the ends of -two air hoses, the other ends being attached to an airline on each respective car, by putting the face of each hose against the other and giving them a twist so that they are locked together. The function of the air hose is to provide a continuous airline from the source of air supply (locomotive or stationary) to the car or cars for the operation of the air brake mechanism which is standard equipment on each car. Before the air hoses are joined, each car must be coupled to the next one by means of couplers which protrude from the end of each car and fit together like bent fingers of one hand uniting with the bent fingers of the other. After the couplers are together, they are locked by a coupler pin which should automatically drop into place but frequently does not, requiring manual adjustment. When a car or cars are to be coupled it is sometimes necessary for the trainman to properly adjust the position of the couplers in order that the coupling be made. All of the plaintiffs, who were employed by defendant prior to 1928, coupled air hose almost daily. This occurrence existed from the first day they worked as trainmen. New trainmen were given a three day training period with experienced crews and learned from the older crew members how to couple air hose, open knuckles and set brakes. In addition, the trainmen received compulsory instructions on the air brake system, and rules and regulations concerning it. Classification of Employeés Who ■ Couple Air Hose “Trainmen” The crews operating the freight trains over the yard territories described are divided into road crews and yard crews. Generally, if a trainman works on a train which takes him out of the switching limits of the general yard where he begins his work and into one or more other general yards, he is engaged in road service. A trainman is in yard service when he is engaged in the movement of a car or cars entirely within the switching limits of a single general yard. The switching limits of a general yard are not coextensive with its yard limits, but exceed them. (Thus, while the yard limits of New Castle general yard are only five and a half miles, the switching' limits are nine miles.) Apart from engine service employees, each crew consists of three men; a conductor, brakeman and flagman on a road crew, and a foreman and two helpers on a yard crew. While the nomenclature varies, the duties are comparable.. The primary function of both road and yard crews is to directly handle the picking up, moving, setting off and switching of cars. In this process it is necessary, under certain circumstances, that the air hose between cars be coupled to provide braking facilities while the cars are in motion. There are no rules or regulations prescribed either by the Interstate Commerce Commission or railroad management that the air hose must be coupled except when the cars are being moved on or across the main tracks, over a public crossing or on steep grades. Thus, cars may be shifted around in yards without having air hose connected, provided the train is not operated over a public crossing. In 1923, defendant instituted an apprentice system under which an inexperienced man was required to serve a three-day training period working with older men who told him how to couple air hose, open knuckles, set brakes and the like. Prior to 1930, all trainmen were required to take instructions on the air brake system, its manipulation, pertinent rules and regulations in a building at McKees Rocks, Pennsylvania. Subsequently, the equipment was placed in a car and moved from terminal to terminal; the receiving of instructions remained mandatory. All cabooses on freight trains must contain, as standard equipment, a certain number of air hoses, air hose gaskets and a wrench for changing air hose, which equipment it is and was the duty of the conductor to obtain, keep on hand and use, to which requirement neither trainmen nor unions ever made obj ection. “Car Inspectors” At many, but not at all, points within each of the general yards,' car inspectors were located and had been long prior to 1915. About ten percent (10%) of a car inspector’s. time is spent in coupling air hose and performing the tasks incident thereto, such as checking the angle cocks, cross-over pipes and air connections and applying the air and testing the brakes to ascertain that the brakes apply and release. If inspection reveals a defect which requires going under the car to repair it, the car inspector makes the repair but trainmen do not. Historical Background Of 1928 and 1936 Trainmen’s Contracts The various contracts were not hastily drawn. They were the product of considerable discussions and conferences, with extensive proposals and . counter proposals, which finally culminated with written contracts being prepared, executed and approved by the respective parties. There is no claim that there was any fraud or overreaching by any of the parties, or that there was a mutual mistake. The first contract between the trainmen and the defendant railroad was executed in 1888. Subsequent contracts were entered into between the defendant railroad and the trainmen up to and including the period involved in this action. Dates of contracts are as follows: 1891, 1894, 1900, 1902, 1906, 1907, 1910, 1912, 1915, 1920, 1924, 1928, and 1936. In 1928 the Brotherhood of Railroad Trainmen represented" a part, and the Order of Railway Conductors represented the balance, of all the yard and road freight service trainmen. The railroad was required by the Railway Labor Act to negotiate with these unions, and no other groups or individuals, a contract or contracts concerning rates of pay, rules and working conditions. See Virginia Railway Co. v. System Federation No. 40, Railway Employees’ Department of the American Federation of Labor et al., 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. The two unions entered into negotiations looking toward a single joint contract between them and the men represented by them, and the defendant. The contract which resulted from these negotiations was binding on all members of the crafts represented, whether members of the union or not and regardless of whether the individual trainman was employed by defendant at the time of the execution of the contract or entered the employ of defendant during the life of the contract. Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L. Ed. 1886; Lewellyn v. Fleming, 10 Cir., 1946, 154 F.2d 211. Historical Background of Car Inspectors’ Contracts Car inspectors were not governed by either the 1928 or 1936 Contracts, or any other working agreements which related to trainmen. Prior to December 5, 1921, the craft of carmen, which includes car inspectors and air inspectors, was not represented by any union and was working under an oral and not a written contract. On December 5, 1921, a written contract governing the terms and conditions of employment was executed by the defendant and a committee which represented all carmen employees. Subsequent agreements were made on behalf of the carmen by their bargaining representative, The American Federation of Railroad Workers, on July 1, 1923, October 1, 1926, and February 13, 1928. On May 1, 1948, the bargaining agreement of the carmen was executed by the United Railroad Workers of America, C.I.O., with the defendant. At the time of the negotiation and execution of the contracts involved in this action, the car inspectors were governed by a working agreement which became effective on October 1, 1926, subsequently revised on February 13, 1928. During the whole of the period involved in this action, April 1, 1940 to December 1, 1944, carmen were governed by the provisions of the bargaining agreement executed with defendant on February 13, 1928. History of Air Hose Rule in Trainmen’s Contracts While many railroad contracts contain an air hose rule, each such provision must be interpreted and construed against its own factual background. There has never been an air hose rule which was standard on all class “A” railroads throughout the United States. Some roads have no air hose rules, and there are wide variations in the rule from one road to another where' such rules are in the contracts. Although defendant had contracts with its train service employees as early as 1888, and trainmen had coupled air hose since before the turn of the century in yards where car inspectors were available, the first appearance in a train service employees’ contract of any mention of air hose coupling occurred in 1915. Trainmen had been coupling air hose in smaller yards where car inspectors were available at times when the car inspectors were sitting idly in their shanties and doing nothing. The trainmen believed that the car inspectors were being remiss in their work. At that time the trainmen were represented by two unions, the Brotherhood of Railroad Trainmen and the Order of Railway Conductors, and the joint committee proposed to defendant on July 1, 1914 that a new rule be added to the contract to read as follows: “At points where car inspectors or air inspectors are stationed, trainmen and yardmen will not be required to couple air or steam hose; if so required, they will be allowed actual time with a minimum of two hours.” At conferences between the joint committee and management representatives, management insisted that the word “stationed” was too broad, so the word “available” was substituted for “stationed.” In addition, the penalty provision' was withdrawn by the joint committee. The rule as it appeared in the 1915 contract read: “At points where car inspectors or air inspectors are available, trainmen and yardmen will not be required to couple air or steam hose.” The 1915 agreement defined trainmen as conductors, flagmen, brakemen and train baggage masters, and defined yardmen as yard conductors and yard brakemen; it also provided, inter alia, as to “outside duties” that “regular trainmen or yardmen required to tend switches, watch crossings, or do any other work outside of their regularly assigned duties will be paid their regular wages, except when filling positions-that pay a higher rate they shall receive the higher rate for the full day.” A new agreement was negotiated in 1920, which agreement changed the definition of trainmen. to apply to conductors, ticket collectors, flagmen, brakemen, train baggage masters, yard foremen, yard helpers and switch tenders. Article 9 of the 1920 agreement, as to “outside düties,” eliminated the words “regular trainmen or yardmen” from the 1915 agreement and substituted the word “trainmen” therefor and also added— “(b) Trainmen will not be used to fire engines on outlawed trains tied up by law or for any other reason, or to take charge of engines when engine service employees are available. Where used, they will be paid a minimum of three hours at their regular rates per hour, plus what they would have earned in their regular service.” No change was requested or made in the provision relative to coupling air hose. Although a new agreement was written in 1924, neither the BRT nor the ORC suggested a change in the “outside duties” or air hose rules, so they remained as they had been in the 1920 contract. The 1924 Contract was superseded by the 1928 Agreement. All who took part in the negotiations preceding the 1928 Contract (both labor and management representatives) made no mention or discussed any penalty to be visited on the defendant for violation of the air hose rule. The only change in the rule proposed by the collective bargaining representatives, relating to the air hose rule, was to substitute “stationed” for “available,” which request was refused. Article 9 of the 1924 Contract was reprinted verbatim as Article 11 in the 1928 Contract. Following an election under the authority of the National-Mediation Board on March 7, 1935, the BRT was certified as bargaining representative for road brakemen and flagmen, yard conductors and brakemen, train baggagemen and switch tenders, and the ORC was certified as representative of road conductors and ticket collectors. At a similar election on September 28, 1935, the ORC was certified as bargaining representative for yard conductors, thus leaving the BRT representing road brakemen and flagmen, yard helpers, train baggagemen and switch tenders. The ORC negotiated a separate contract with defendant on be-r half of the employees represented by them, which contract became effective November 17, 1936. The air hose rule as' it appeared in the 1928 contract was reprinted in the ORC 1936 Cpntract, with the exception that where the word “trainmen” appeared in the 1928 Contract, the words “conductors, assistant conductors or yard conductors” (yard foremen) were substituted. On February 8, 1939, after another election, the BRT was again certified as the bargaining agent for the yard conductors, thus leaving the ORC to represent only road conductors among freight trainmen. The ORC lost the right to represent road conductors on July 18, 1945 when the BRT was certified as their bargaining representative. History of Air Hose Rule in Carmen’s Contracts .The working agreement of the carmen which was in effect at the time of the negotiation and execution of the trainmen’s contracts involved in this action, and during the period previous to the filing of this suit on December 1, 1944, contained the following terms and provisions as to the duties of car inspectors: “Rule 27 — Classification of Work. “Carmen’s work shall consist of building, maintaining, dismantling (except all-wood freight-train cars), painting, upholstering and inspecting all passenger and freight cars, both wood and steel, planing mill, cabinet and bench carpenter work, pattern and flask making and all other carpenter work in shops and yards, except work generally recognized as bridge and- building department work, carmen’s work in building and 'repairing motor cars, lever cars, hand cars and station trucks, building, repairing and removing and applying locomotive cabs, pilots, pilot beams, running boards, foot and headlight boards, tender frames and trucks; pipe and inspection work in connection with air brake equipment on freight cars applying patented metal roofing; operating punches and shears doing shaping and forming; work done with hand forges and heating torches in connection with carmen’s work; painting with brushes, varnishing, surfacing, decorating, lettering, -cutting of stencils and removing paint (not including use of sand blast machine or removing in vats) ; all other work generally recognized as painters’ work under the supervision of the locomotive and car departments, except the application of blacking to fire and smoke boxes of locomotives in engine houses; joint car inspectors, car inspectors, safety appliance and train car repairers, oxyacetylene, thermit and electric welding on work generally recognized as carmen’s work; and all other work generally recognized as carmen’s work. “It is understood that present practice in the performance of work between the carmen and boilermakers will continue.” “Rule 45 — Car Inspectors. “Employees assigned to the position of car inspector must be able to speak and write the English language and have proper knowledge of the Master Car Builders’ Rules and Safety Appliance Laws-, the management to be the judge.” The carmen’s contracts also required protection for said employees while engaged in their employment. “Rule 47 — Protection for Repairmen. “At points where there is a Foreman it shall be the duty of such Foreman and Inspectors and repairmen at work to know, personally that cars being inspected or repaired are protected by day with a blue flag and at night with a blue flag and a blue lantern suspended therefrom. “The flags will be made of light sheet iron eighteen (1,8) inches long and twelve (12) inches wide, secured to a piece of five-eighths (%) round iron, four (4) feet long, sharpened at the lower end. These flags must be placed in the center of the inspection or repair tracks, near the end and opposite the clearance point thereof, and driven securely into the earth or tie, so that there is no possibility of them being blown down. At any time that the flags become dim or defective, another one must be ordered from the Company, and the displaced one sent to the shops. It shall be the joint duty of the Foreman, Inspectors and repairmen to know personally that the flags are in good condition and that the lanterns are lighted at night and are in first-class condition to give light while being used.” This protection was made available to carmen while they were engaged in the coupling of air hose but the same or a similar protection was not set forth in the Trainmen’s Contracts of 1928 or 1936, nor was it provided for them by the defendant. It is apparent there is no express provision in said rules which requires or spells out in so many words that carmen are required to couple air hose. The last sentence in the first paragraph of Rule 27 states that carmen’s duties shall also consist of the performance of work generally recognized as carmen’s work. I further cannot find any provisions in the Safety Appliance Laws which require car or air inspectors to couple air hose. However, it is a fact that carmen did engage in the coupling of air hose for some period of time prior to the negotiation and execution of their first bargaining agreement with the defendant, and under all of their subsequent bargaining agreements. History of Craft System and Basic Day Rule The craft system and the basic day rule for each class of service requires explanation for those other than railroad people to understand. (a) Craft System— Recognition is given by railroads and the employees’ labor organizations that the training and experience of individuals engaged in various operations becomes highly specialized. Each class of employees has a high degree of training and drilling in doing the things which their work requires. The preservation of this specialized training with definite or limited duties is called the craft system. Each group of employees makes their career in their own craft, both for their own safety and their advancement. Also, this specialization contributes to the safety of railroading and the safety of the public. The high development of craft lines is accepted by both labor and management since railroading is somewhat hazardous, whether it he operation of trains, maintenance and repair of equipment, maintenance of rights of way, or any of the many and different types of work which must be performed in order to make possible the effective and safe operation of trains. The craft system has grown to such strength as now to he unassailable. As to the statutory and judicial recognition of the craft system on railroads of the United States, see Railway Labor Act, 45 U.S.C. A. § 152. See also cases cited in pocket supplement to Title 45 § 152. Steele v. Louisville & N. R. Co., Ala.1944, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Switchmen’s Union of North America v. National Mediation Board, 1943, 77 U.S.App.D.C. 264, 135 F.2d 785, reversed on other grounds 320 U.S. 297, 64 S.Ct. 95, 88 L. Ed. 61. (b) Basic Day Rule— The underlying theory of the rule is that if, during the course of a day’s tour of duty, a trainman does work both in and out of his craft, he is working under two contracts and is entitled to be paid under both contracts. He is, therefore, entitled to sixteen (16) hours’ pay even though he worked but one hour (or one minute) under the contract outside his craft. It is, therefore, an incident and aids in making possible the preservation of the craft system. The reasoning behind the rule was that if the employees would perform their duties in less than a given period of time, or hours, they would be paid their full day’s pay. That when their work was completed if they were assigned to perform additional work, they would receive an additional day’s pay for so doing. That said rule helps both the employees and the railroads since it encourages the employees to expeditiously apply themselves, and the railroads get the work completed with greater dispatch and promptness. Originally the basic day was twelve (12) hours or less, subsequently reduced to ten (.10) hours or less, and prior to and at the time of the negotiation and execution of the trainmen’s contracts in suit the basic day was eight (8) hours or less. The terms of the contracts which the plaintiffs contend entitle them to recover provide as follows: 1928 Contract “Article 11 — Outside Duties “(a) Trainmen required to tend switches, watch crossings or do any other work outside of their regularly assigned duties will he paid their regular wages, except when filling positions that pay a higher rate they shall receive the higher rate for the full day. “(h) Trainmen will not be used to fire engines on outlawed trains tied up by law or -for other reasons, or to take charge of engines when engine service employees are available. Where used, they will be paid a minimum of three hours at their regular rates per hour, plus what they would have earned in their regular service. “Coupling Air and Chaining Cars “(c) At points where car inspectors or air inspectors are available, trainmen will not be required to couple air or steam hose. “Article 8 — Basic Day and Overtime. • “(a) In all road service, except passenger service, one hundred miles or less, eight hours or less (straight-away or turnaround) shall constitute a day’s work. Miles in excess of one hundred will be paid for at the mileage rates provided. “Article 44 — Basic Day. “Eight hours or less shall constitute a day’s work.” The 1936 Contract, except for the different designation of employees, has identical articles, more particularly Articles 11 (a), 11(b), 11(c), 8(a) and 44. It is contended when Articles 11(a) and 11(c) are read with Articles 9(a) and 44 that if a trainman is required to couple air hose at points where car inspectors or air inspectors are available, he is entitled in payment therefor to an additional day’s pay —that is, a day’s pay in addition to the pay that he receives for doing his regular duties, and that day would be paid for at his trainman’s rate of pay or the air inspector’s or car inspector’s rate, whichever is the higher. In addition to the matters heretofore mentioned, the plaintiffs claim their position is supported by Award 8258 of the First Division of the National Railroad Adjustment Board. This claim was filed by trainmen Hemp-hill and Wagner on March 16, 1941, and was consistently and wholly denied to be due by the defendant. It was processed by representatives of the Brotherhood of Railroad Trainmen and on July 19, 1943 the Board sustained the claim— (a) Said award sustained the claim of the two trainmen for an additional day’s pay for coupling air hose in a general yard where an air or car inspector was available. (b) Neither Hemphill nor Wagner is a plaintiff in this action nor were any of the plaintiffs a party to said proceeding before the Board. The defendant paid the award and the plaintiffs contend such action amounts to an admission of liability on the defendant’s part as to all trainmen similarly situated. General Theory of Plaintiffs’ Action It is claimed the plaintiffs coupled air hose during the period involved in this litigation, and in so doing under the provisions of the collective bargaining agreements a right exists to receive an additional day’s pay for each day air hose was so coupled. In coupling air hose the plaintiff trainmen state: (a) They were engaged in work outside of their craft. (b) They were engaged in work outside of their regular assigned duties. (c) Under the provisions of the two contracts they were entitled to an additional day’s pay. (d) They were entitled to an additional day’s pay, even if the contracts are interpreted to not so require, since a nationwide custom and practice existed among railroads and their employees that a trainman was to receive an extra day’s pay when an act or work was performed specifically not required by the contract. (e) That the nationwide custom and practice required the payment of an additional day’s pay when the trainmen performed work of men in a different craft unless the contract fixed a different measure of pay; that the contracts in suit did not so provide a different measure of pay. (f) That when the contracts in suit were negotiated and executed, the collective bargaining representatives and the company assented to, recognized and intended said custom and practice to be a part thereof. (g) That an award of the First Division of the National Railroad Adjustment Board supports their right to recover. (h) That subsequent to March 16, 1941 (the date of thé filing of Hemphill-Wag-ner claim), no defense exists as to custom to do the work as part of the regular assigned duties of trainmen. (i) That the payment of said award by the defendant amounts to an admission of liability to the plaintiffs who are similarly situated. (j) That a settlement made by the defendant with the trainmen and some of the plaintiffs subsequent to said Award is an admission of liability. General Reference to Defense It is the contention of the defendant that none of the plaintiffs with- the exception of C. P. Crane, R. J. Knechtel, F. E. West-cott, A. Gasper, C. Gough and R. C. Harris, trainmen, are entitled to recover, said admission of liability being based on a compromise agreement with the collective bargaining representatives of the employees contemporaneous with the negotiation and execution of a new contract effective December 1, 1944. The defenses are: (a) There are no provisions in the contracts which entitle the plaintiffs to recover and it' was specifically so understood by the bargaining representative when the contracts were negotiated and executed. (b) It was specifically understood that trainmen would not be paid for coupling air hose and that said work was part of their regular assigned duties. (c) The plaintiffs have not proved a custom to exist that trainmen should be paid for coupling air hose. (d) Trainmen have coupled air hose on the railroad long prior to 1915 when the air hose rule first appeared in defendant’s contracts. (e) Coupling air hose by trainmen was within the craft of trainmen. (f) Coupling air hose was not confined to any specific craft. (g) Coupling air hose was not the sole or individual responsibility of air or car inspectors. (h) The basic day or additional day rule does not apply to coupling air hose. (i) Any claims which the plaintiffs might have had are barred by agreement of their certified bargaining representatives. There can be no doubt that each and every plaintiff is bound by the express terms of the 1928 Contract, with the exception of those plaintiffs who are making claim for services performed while they were, road conductors, and they are governed by the express provisions of the 1936 Contract entered into between the Order of Railway Conductors and the defendant railroad. Since the pertinent provisions of the 1928 and 1936 Contracts differ only in the designation of the individuals affected by such provisions, all plaintiffs are equally governed by the same legal principles. Issues I. Are any of the plaintiffs entitled to recover under the express provisions of the 1928 and 1936 Contracts? II. If the contracts are construed by their express terms to not entitle the plaintiffs to recover, did a nationwide custom and practice exist that the parties recognized and intended to be a part of said contracts, which entitles the plaintiffs to an additional day’s compensation for coupling air hose ? III. Does an award of the National Railway Adjustment Board, which sustained claims for coupling air hose under similar circumstances as that involved in this action, where none of the plaintiffs were parties thereto, require the Court to apply said award in disposing of the claims involved in the case at bar ? IV. Does payment of an award made by the National Railway Adjustment Board to the claimants involved therein, and the subsequent payment to employees similarly situated, amount to an admission of liability under the contracts in suit such as would entitle the plaintiffs to recover? V. Does the settlement agreement executed by the bargaining representatives of the trainmen with the defendant relating to claims for air hose couplings bar the plaintiffs’ right to recover where— (a) Plaintiff trainmen were members of said bargaining agency (BRT) ? (b) Plaintiff trainmen were not members of said bargaining agency? VI. Does the failure of plaintiff trainmen to comply with the terms of said settlement agreement relating to services performed for air hose coupling bar them from the right to recover where— (a) Plaintiff trainmen were members of said bargaining agency (BRT) ? (b) Plaintiff trainmen were not members of said bargaining agency? VIT. Does the acceptance by plaintiff trainmen of payments made by the defendant, under the provisions of said settlement agreement for coupling of air hose, bar their right to recover and amount to an accord and satisfaction? VIII. Does the failure of plaintiff trainmen, who were members of the BRT, to follow the grievance procedures prescribed by the Constitution and By-Laws of said organization bar their right to recover? Discussion of Issues Question I — Are any of the plaintiff trainmen entitled to recover under the express provisions of the 1928 and 1936 Contracts ?— The 1928 and 1936 Contracts, upon which this cause of action is based, were executed in Pennsylvania. Where jurisdiction of a federal court in suit for breach of contract is based on diversity of citizenship, and the contract was executed in the state of Pennsylvania, the law to be applied is the law of Pennsylvania, including its rules on conflict of laws. Atlas Trading Corporation v. S. H. Grossman, Inc., 3 Cir., 169 F.2d 240; Klaxon Co. v. Stenter Electric Mfg. Co., 1946, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; New York Life Ins. Co. v. Levine, 3 Cir., 1943, 138 F.2d 286; Chicago Pneumatic Tool Co. v. Ziegler, 3 Cir., 1945, 151 F.2d 784. In this proceeding there were originally twenty-four named plaintiffs, each of whom possessed the requisite qualifications of diversity of citizenship and claims in excess of $3,000.00. Leave was subsequently granted additional plaintiffs the right to intervene. See D.C., 68 F.Supp. 395 ; 70 F.Supp. 870 ; 7 F.R.D. 33. Federal jurisdiction being based solely on diversity of citizenship as to the original plaintiffs, the same rules of law would have application to those plaintiffs who have been granted leave to intervene. Under the Pennsylvania Conflict of Laws Rule the interpretation of a contract is determined by the law of the place of contracting. New York Life Ins. Co. v. Levine, supra; Newspaper Readers Service v. Canonsburg Pottery Co., 3 Cir., 1945, 146 F.2d 963. In Pennsylvania a contract is made when and where the last act necessary for its formation is done. Newspaper Readers Service v. Canonsburg Pottery Co., supra; Ward Lumber Co. v. American Lumber & Mfg. Co., 247 Pa. 267, 93 A. 470, Ann. Cas. 1918A, 451. The interpretation of said contracts is, therefore, governed by the law of Pennsylvania. Counsel for the party litigants have been most vigorous, searching and thorough in the trial of this proceeding, and have presented a most learned and carefully annotated argument in support of their respective positions. Consideration must first be given to the express terms of the contracts which relate to the claims. 1928-1936 Contracts “Article 11 — Outside Duties. “(a) Trainmen required to tend switches, watch crossings or do any other work outside of their regularly assigned duties will be paid their regular wages, except when filling positions that pay a higher rate they shall receive the higher rate for the full day. “(b) Trainmen will not be used to fire engines on outlawed trains tied up by law or for other reasons, or to take charge of engines when engine service employes are available. Where used, they will be paid a minimum of three hours at their regular- rates per hour, plus what they would have earned in their regular service. “Coupling Air and Chaining Cars. “(c) At points where car inspectors or air inspectors are available, trainmen will not be required to couple air or steam hose.” 1928 Contract “Article 8 — Basic Day and Overtime, “(a) In all road service, except passenger service, one hundred miles or less, eight hours or less (straight-away or turnaround) shall constitute a day’s work; Miles in excess of one hundred will be paid for at the mileage rates provided. “Article 44 — Basic Day. “Eight hours or less shall constitute a day’s work.” 1936 Contract “Article 9 — Basic Day and Overtime (a) In all road service, except passenger service, one hundred miles or less, eight hours or less (straight-away or turn around) shall constitute a day’s work. Miles in excess of one hundred will be paid for at the mileage rates provided. “Article 44 — Basic Day — Yard Service “Eight hours or less shall constitute a day’s work.” The Court is not dealing with the interpretation of a statute, but of labor bargaining agreements or contracts. When the 1928 and 1936 Contracts were negotiated and executed, under the provisions of the Railway Labor Act the duty was imposed on the defendant to meet and bargain with the employees through their collective bargaining representatives which were the Brotherhood of Railway Trainmen and the Order of Railway Conductors. National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682. Contract in labor law is a term the implications of which must be determined from the connection in which it appears. Collective bargaining between employer and the representatives of. a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than a contract of employment. Without pushing the analogy too far, the agreement may be likened to the tariffs established by a carrier, to standard provisions prescribed by supervising authorities for insurance policies, or to utility schedules of rates and rules for service, which do not of themselves establish any relationships but which do govdrn the terms of the shipper or insurer or customer relationship whenever and with whomever it may be established. Indeed, in some European countries, contrary to American practice, the terms of a collectively negotiated trade agreement are submitted to a government department and if approved become a governmental regulation ruling employment in the unit. J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 334 et seq., 64 S.Ct. 576, 88 L.Ed. 762. After the collective trade agreement is made, the individuals who shall benefit by it are identified by individual hirings. The employer, except as restricted by the collective agreement itself and except that he must engage in no unfair labor practice or discrimination, is free to select those he will employ or discharge. But the terms of the employment already have been traded out. There is little left to individual agreement except, the act of hiring. This hiring may be by writing or by word of mouth or may be implied from conduct. In the sense of contracts of hiring, individual contracts between the employer and employee are not forbidden, but indeed are necessitated by the collective bargaining procedure. J. I. Case Co. v. National Labor Relations Board, supra. But, however engaged, an employee becomes entitled by virtue of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., somewhat as a third party beneficiary to all benefits of the collective trade agreement, even if on his own he would yield to less favorable terms. J. I. Case Co. v. National Labor Relations Board, supra. The terms of a collective bargaining agreement between a railroad and its employees cannot be superseded or expanded by contracts with individual employees, even though such individual contracts are only with a few employees specially or uniquely situated. J. I. Case Co. v. National Labor Relations Board, supra; Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 64 S.Ct. 582, 88 L. Ed. 788. A collective bargaining agreement or employment contract, such as the contracts under which the plaintiffs worked, is required by law to be in writing. J. I. Case Co. v. National Labor Relations Board, supra; Order of Railroad Telegraphers v. Railway Express Agency, supra; H. J. Heinz v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309. Collective bargaining agreements are no less contracts simply because they are arrived at after bargaining between an employer and representatives of a collective group. Where the language of a contract is plain and unambiguous, the court will not resort to construction but will enforce the contract according to its terms. New York Life Ins. Co. v. Jackson, 304 U.S. 261, 58 S.Ct. 871, 82 L.Ed. 1329; Great Lakes Towing Co. v. Bethlehem Transportation Corporation, 6 Cir., 1933, 65 F.2d 543; Provident Trust Co. of Philadelphia v. Metropolitan Casualty Ins. Co., 3 Cir., 1945, 152 F.2d 875; General Finance Co. v. Pennsylvania Threshmen & Farmers’ Mutual Casualty Ins. Co., 348 Pa. 358, 35 A.2d 409. Where the rights of respective parties are dependent upon a contract, unless that instrument is ambiguous, the intention of the parties must be determined by the words of the contract, unaided by oral testimony. Rock-Ola Mfg. Corporation et al. v. Filben Mfg. Co. et al., 8 Cir., 168 F.2d 919. In determining whether or not there is an ambiguity requiring an interpretation, the whole contract must be considered and not an isolated part. Buchanan v. Swift, 7 Cir., 1942, 130 F.2d 483; Fraser Fund v. Fraser, 350 Pa. 553, 40 A.2d 22; De Chicchis v. School District of Borough of Elizabeth, 142 Pa.Super. 94, 15 A.2d 492. A contract is ambiguous if, and only if, it is reasonably or fairly susceptible of different constructions; it is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends. 17 C.J.S., Contracts, § 294 and cases there cited; Whiting Stoker Co. v. Chicago Stoker Corporation, 7 Cir., 171 F.2d 248; Zehnder v. Michaud, 8 Cir., 145 F.2d 713. Contracts are not rendered ambiguous by the mere fact that the parties do not agree upon their proper construction. An ambiguous contract is one capable of being understood in more senses than one; an agreement obscure in meaning, through indefiniteness of expression, or having a double meaning. Contracts are not rendered ambiguous by the mere fact that parties do not agree upon their proper construction. Whiting Stoker Co. v. Chicago Stoker Corporation, supra. Where a contract is ambiguous, evidence of extrinsic circumstances may be received to show that the parties themselves have adopted a permissible method of applying its terms to the subject matter. Zehnder v. Michaud, supra. Where parol evidence is admissible to alter the terms of a written contract, it must first appear that the contract is incomplete and that the evidence sought to be introduced in nowise conflicts with what is written. American Sumatra Tobacco Corporation v. Willis, 5 Cir., 170 F.2d 215. The courts are not permitted to make contracts for party litigants and are only empowered to construe the language and meaning of contracts made and entered into as they are intended and understood by the parties. In the absence of fraud, accident or mistake, parol evidence is not admissible to vary, alter or contradict terms of a complete and unambiguous written contract. American Sumatra Tobacco Corporation v. Willis, supra. This is not a case where the parties are just unable to agree upon the proper construction to be placed on the contracts in suit. A situation exists where the contracts are capable of being understood in more senses than one; they are obscure in meaning, through indefiniteness of expression. Since the contracts are ambiguous, that is, the language used is reasonably susceptible of more than one meaning, it is the duty of the court to determine the intent of the parties. There is no question in my mind that language used in railroad agreements and contracts is peculiar and unique to the railroad industry. Of course, it is English, but it is a peculiar brand in many respects. There are words which have specialized meanings within the context or framework of railroad practice and what might be called railroad jargon. The admission of parol evidence in this proceeding, both as to the plaintiffs and the defendant, was not to contradict or vary the terms of the written agreements. As to the plaintiffs, it was for the purpose of explaining the meaning of the contracts and the effect thereof by witnesses who were ably qualified to express their opinions. In connection with the defendant, it was permitted to show the circumstances surrounding the negotiations and execution of the contracts in order to determine the intention of the parties. In each instance the parol testimony was proper and necessary; otherwise the Court could not have seen the trees due to being in the forest. The experts called by the plaintiffs were thoroughly familiar with working agreements between employees and railroads generally in the United States; but they were not informed as to the detailed physical conditions which existed on the defendant railroad. Testimony offered by those acquainted with railroad parlance and the administration by the Railroad Adjustment Board is of peculiar and unexplainable value. Such testimony brings to the court the weight of decision on facts and law by men experienced in contracts, disputes and proceedings of this special and complicated character. The whole adjustment procedure up to the point of award, findings and order by the Railway Labor Board appears to be constructed upon the idea that it is not the business of lawyers, but is the. business of railroad men, workers and managers alike. That does not make their findings and decisions less probative; rather it should make them more so. They know the language, functions and purposes of railroads and of their collective agreements. Their judgment is informed by experience in negotiating and administering these contracts. Because of this, they, perhaps better than lawyers, are qualified to interpret and supply them. Whether so or not, their judgment should carry weight when the judicial stage of controversy is reached. It cannot be assumed, therefore, that the findings have no substantive effect, merely because they were not given finality, as to either facts or law. They are probative, not merely presumptive in value, having effect fairly comparable to that of expert testimony. Washington Terminal Co. v. Boswell, et al., 75 U.S.App.D.C. 1, 124 F.2d 235, 241. A witness possessed of special training, experience, or observation in respect to the matter under investigation may testify as to his opinion when it will tend to aid in reaching a correct conclusion. Where a written contract contains words or expressions of a technical nature employed in a particular business or industry, persons familiar with such business or industry may testify as to whether the words or expressions used have acquired a well-recognized meaning among those engaged in such business or industry, and if so, what it is, lor the purpose of aiding the court in ascertaining the intentions of. the parties to the contract. United States Smelting Co. v. Parry, 8 Cir., 166 F. 407, 410, 411; Farris v. Interstate Circuit, 5 Cir., 116 F.2d 409, 412; Eustis Packing Co. v. Martin, 5 Cir., 122 F.2d 648, 649; Securities and Exchange Commission v. Thomasson Panhandle Co., 10 Cir., 145 F.2d 408; Cf. Cooper v. Ohio Oil Co., 10 Cir., 108 F. 2d 535; Manhattan Oil Co. v. Mosby, 8 Cir., 72 F.2d 840, 845; United States v. Stone and Downer Co., 274 U.S. 225, 245, 47 S.Ct. 616, 71 L.Ed. 1013; United States Industrial Chemicals v. Carbide & Carbon Chemicals Corporation, 315 U.S. 668, 678, 62 S.Ct. 839, 86 L.Ed. 1105; Pennsylvania Trial Evidence, Second Edition, by George M. Henry of the Philadelphia Bar, page 264; Purcell v. Metropolitan Life Ins. Co., 332 Pa. 535, at page 537, 3 A.2d 340; Thorn Hill Oil Co. v. Ft. Pitt Gas Co., 202 Pa. 416, 51 A. 981; Clayton Electric Co. v. McKeesport & W. Ry. Co., 179 Pa. 350, 36 A. 287; Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104; Phillips Petroleum Co. v. Payne Oil Corporation, 10 Cir., 146 F.2d 546, 547. The plaintiffs contend that the language of the two contracts, more particularly Articles 11(a) and 11(c), clearly establishes that in coupling air hose plaintiffs were working outside of their regular assigned duties, and not within their craft. That in either event and without splitting hairs to determine one or the other, or both, the plaintiffs come within the additional day principle, whether the term “craft” or “regular assigned duties” is considered. That when Articles 11(a) and 11(e) of the 1928 and 1936 Contracts are read and considered with Articles 8(a) and 44 of the 1928 Contract or Articles 9(a) and 44 of the 1936 Contract, it means that the trainmen are entitled to an additional day’s pay for coupling air hose where car inspectors were available. The defendant offered testimony of various representatives of the bargaining agency and the defendant who took part in the negotiation and execution of the 1928 and 1936 Contracts, and the bargaining agreements prior thereto. Such testimony was relevant not only for the purpose of assisting the Court in arriving at the intention of the parties, but for the same reasons which expert testimony was offered by the plaintiffs; that is, to explain the meaning of the terms and provisions of the contracts. As I have heretofore stated, the terms of the contracts are not plain and unambiguous in railroad parlance and where the meaning of a contract is not clear, parol evidence is admissible to determine the intent of the parties. Hollander et al. v. Friedman, infra; Restatement, Contracts, Section 235(e); W-illiston on Contracts, Revised Edition, Vol. 3, Section 623, pp. 1792-1795. A witness may be competent to testify as an expert witness evqn though his knowledge was acquired through the medium of practical experience rather than scientific duty and research. A witness is an expert witness and qualified to give expert testimony if the judge finds that to perceive, know or understand the matter concerning which the witness is to testify there is required special knowledge, skill, experience or training, and that the witness has the requisite special knowledge, skill, experience or training. Bratt v. Western Air Lines, 10 Cir., 155 F.2d 850, 166 A.L.R. 1061; Wigmore on Evidence 2d, Vol. 1, para. 561. The defendant contends: 1. That the express terms of Article 11(a) destroy the effort to use it as a basis for implying an extra day’s pay penalty. “Article 11. — Outside ■ Duties. “(a) Trainmen required to tend switches, watch crossings or do any other work outside of their regularly assigned duties will be paid their regular wages, except when filling positions that pay a higher rate they shall receive the higher rate for the full day.” That, in unmistakable words, is a specific measure of compensation for trainmen who do any other work outside their regularly assigned duties. 2. That under the caption “Outside Duties” is a specific and unequivocal statement of the measure of compensation for those who work outside their assignment. 3. That there is nothing ambiguous about Article 11(a) — it means precisely what it says. It means, for example, that if a yardman working as such were required to tend switches part of the day, he would be paid the higher rate for the full day or his yardman’s rate for the entire day. 4. That the parties who wrote the contract knew how to provide for additional compensation when it was intended. The words “additional” and “plus” in connection with compensation appear throughout the 1928 Contract, for example, Articles 5, 7, 11(b), 22(a), (b), (c) and (d) and 48(b). 5. That Article 11(c) of the 1928 Contract was not intended to nor did it impose-any monetary liability on defendant if trainmen were required to and did couple air hose at points where car inspectors or air inspectors were available. The parties who negotiated the contract were not novices at collective bargaining. In 1915, 1920 and 1924 the same two unions had negotiated contracts with the defendant and had made many 'changes in such contracts, resulting in increased financial advantages to the trainmen employees. If Article 11(c) had been intended to carry with it a penalty on the company for its violation, the parties well knew how to provide for such a penalty. Plaintiffs answer and say that the air hose rule placed all air hose coupling outside the work of trainmen, and for the performance of which they were entitled to an additional day’s pay. They stated that “point” was co-extensive with “general yard,” and that “available” was synonymous with “stationed”, “maintained” and “employed.” Since defendant had admitted that at least one car inspector was on duty at some point, but not at all points, within the limits of each general yard twenty-four hours a day from April 1, 1940 to December 1, 1944, and since the entire railroad system is, for all practical purposes, a series of contiguous general yards, under the reasoning of plaintiffs’ experts it necessarily follows that trainmen who coupled air hose during that period were performing outside duties no matter where or under what circumstance they performed a coupling. Reading into a contract the true meaning of technical terms, familiar to and used by the parties to a contract, is in no sense supplying by parol a missing term of the agreement. Such trade usage or meaning is supposed to have been in the minds of the parties when the contract was made, and hence the real meaning of the words becomes a part of the contract. Neither the parol evidence rule nor the statute of frauds is violated by reading into a contract a translation of technical terms used, into words of general understanding. Franklin Sugar Refining Co. v. William D. Mullen Co., 3 Cir., 12 F.2d 885, 887. The principles of construction of written contracts are well established and defined. The primary rule of construction is that a contract must be construed to give effect to the mutual intention of the par-ties at the time of entering into the contract. O’Boyle v. Home Life Ins. Co., D.C.Pa.1937, 20 F.Supp. 33; Salant v. Fox, 3 Cir., 1921, 271 F. 449; Wiegand v. W. Bingham Co., 6 Cir., 1939, 106 F.2d 546; Wiegand v. Wiegand, 1944, 349 Pa. 517, 37 A.2d 492; Slonaker v. P. G. Publishing Co., 1940, 338 Pa. 292, 13 A.2d 48; Hild v. Dunn, 1933, 310 Pa. 289, 165 A. 228. The intention of the parties to a contract is, of course, an important guide to the correct interpretation of its meaning. It is true, not infrequently, such intention is best evidenced by the relevant conduct of the parties themselves pursuant to their common understanding of their respective contractual rights and liabilities. The construction which the parties place on their contract, however, has interpretive legal bearing only where the language of the contract is of a doubtful or an ambiguous meaning. Where the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent. Atlantic Refining Co. v. Wyoming Nat. Bank, 356 Pa. 226, 233, 51 A.2d 719, 170 A.L.R. 1060. While the intention of the parties and the meaning of the contract are gathered primarily from the contents of the writing itself, Albright v. Kalbitzer, D.C. Pa.1945, 62 F.Supp. 815; Robinson v. Stover, 1936, 320 Pa. 308, 182 A. 145; Blosser v. Enderlin, 1925, 113 Ohio St. 121, 148 N.E. 393, the words of a contract will be given a reasonable construction, a construction most equitable to the parties which would not give one of them an unfair or unreasonable advantage over the other. Hindman v. Farren, 1945, 353 Pa. 33, 44 A.2d 241; Navarro Corporation v. School District of Pittsburgh, 1942, 344 Pa. 429, 25 A.2d 808; Ohio Crane Co. v. Hicks, 1924, 110 Ohio St. 168, 143 N.E. 388. If a contract is susceptible of mo