FURTHERMORE, EVEN THOUGH THE RULE PERMITS THE CARRIER TO RELIEVE A MAN ANY TIME THE CARRIER WAS WILLING TO FIX A SPECIFIC MAXIMUM NUMBER OF HOURS THAT A MAN COULD WORK, IN FACT-THE CONSUMMATION OF A REASONABLE MEMORANDUM OF AGREEMENT TO SETTLE THIS DISPUTE WAS ABOUT TO BE AGREED UPON BY THE GENERAL CHAIRMAN UNDER DATE OF JANUARY 25, 1956, BUT WAS STOPPED BY THE PETITIONER FOR SOME UNKNOWN REASON.

The carrier reserves the right to present copy of this proposed memorandum of agreement as an exhibit in any future handling of this dispute.

CONCLUSION

The carrier has proven in the foregoing that:

1. The petitioner's interpretation of the subject rule is totally erroneous and is only being interpreted as such for the purpose of gaining collateral advantages.

2. The carrier has conclusively proven to your Honorable Board, its good faith herein and by the various exhibits, which suggest that a memorandum of agreement be consummated to settle the dispute, but the petitioner refused same.

In view of the foregoing, the claim is without merit and should be dismissed and/or denied.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The parties to said dispute were given due notice of hearing thereon.

The claim of the employe in this dispute deals with the interpretation and application of Rule 7 of the said Agreement effective April 1, 1937 as amended.

The pertinent sections of said Rule read as follows:

"An employee regularly assigned to work at shop, enginehouse, repair track or inspection point, when called for emergency road work away from such shop, enginehouse, repair track or inspection point, will be paid from the time he reports at his home station until he returns thereto, for all service performed as follows:

"1. For service during the employee's regular bulletined hours-pro rata rate."

"2. For service in excess of eight (8) hours, in any twenty-four (24) hour period, computed from the starting

time of the employee's regular shift up to eight (8) hours of such service, at time and one-half rate on the actual minute basis with a minimum of one hour."

"3. For service in excess of sixteen (16) hours of service in any twenty-four (24) hour period, computed from the starting time of the employee's regular shift, at double time rate, on actual minute basis."

"4. An employee who has performed more than sixteen (16) hours of service in any twenty-four (24) hour period, computed from the starting time of the employee's regular shift, and if required to continue in service after the expiration of said twenty-four hour period will be paid at the double time rate. An employee who has been released for five (5) hours or more as per paragraph 6 of this rule in the overtime period will terminate the double time payment at the beginning of the next twenty-four (24) hour period."

"6. If, during the time an employee is in the service under this rule, he is relieved from service and permitted to go to bed for a period of five (5) consecutive hours, or more, such employee will not be paid for the period of relief. This relief period, except in the case of employees assigned to wrecking service, may be prior to, subsequent to, or during the period of actual work."

"10. Wrecking service employees will be paid under this rule."

The claimant contended that under said Rule 7 there was no provision for relieving a regularly assigned member of the wrecking crew from service without compensating him, and that said Rule 7 was not ambiguous. It was the claimant's view that the current Agreement provided for a member of the wrecking crew to be paid continuously from the time the crew leaves the home point until the crew returns to its home point, and that therefore it was immaterial as to whether the member of the wrecking crew was working, waiting, traveling or sleeping.

The Carrier contended that said Rule 7 was written for the express purpose of avoiding laying off a member of a wrecking crew while away from the headquarters point, which would have necessitated that he travel back to his home point on his own time; and that therefore under the Rule, wrecking service employees could not be sent to rest before working hours or after working hours, but that it would be permissive to cut them off during their tour of duty for a period of 5 hours or more without pay, provided they are brought back to work; that Rule 7 is ambiguous and that the intent of the parties at the time the Rule was written must be applied.

Where a contract is ambiguous, oral evidence will be accepted to determine the intent of the parties. Where the contract is not ambiguous, outside evidence will not be accepted, but the contract will be determined on the basis of what it says.

Said Rule 7 is ambiguous and its meaning must be determined.

Rule 7 states that an employe such as the claimant who is regularly assigned to work at the Shop when called for emergency road work away

from such Shop will be paid from the time he reports at his home station until he returns thereto for all services performed as set out in said Rule 7 and that if during the time he is in the emergency road service he is relieved from such service and permitted to go to bed for a period of 5 or more consecutive hours, he will not be paid for the said period of relief. This relief period, the Rule goes on to state, may be prior to, subsequent to, or during the period of actual work except in the case of employes assiigned to wrecking service.

Wrecking service is emergency road work. In the first sentence of Section 6 of Rule 7 it is clearly stated that when an employe in emergency road service is relieved from service and permitted to go to bed for a period of 5 or more hours, he will not be paid for the period of relief. In the second sentence of Section 6 of Rule 7 it is set forth that the relief period may be prior to, subsequent to, or during the period of actual work except in the case of employes assigned to wrecking service (emergency service). The said second sentence created an ambiguity in said Rule 7. The intent of the parties in drafting the said second sentence must be ascertained and a determination of its meaning must be made consistent with the intent of the parties and the entire Rule 7.

The Carrier introduced a statement dated March 6, 1957, and signed by Richard W. Hall, Chief of Personnel (Retired) which reads as follows:

"Boston, Mass., March 6, 1957