RuLW 1.-(a) Two hundred forty (240) hotllts' work shall cnnstilute a basic month's service; deadhead ]tours properly authorized to be counted fns service hours. Where a regular assignment is less than 240 ]tours' work per lnonith, deduction will not be made froin the respective established monthly wage in consequence thereof.

(b Service tittle shall be computed av continuous for each trip front the tittle required to report for duly until released. silb,ject to tile following dedtletiolt:

(Lt-1) Actual continuous time ontliorized for rest at night when sleeping npaee is reserved, with a inaxiolulll of 4 hours for the first )tight and a nnxiiuunl of 6 hours for each night thereafter.

(c) When lelense from duty is less than one hour, no deductions will be made front the continuity of tuna

RuLEE 2.-(n) Conductors will be credited with all hours worked each month, except hours of service art "extended special loans." tin,] will be paid overtime fit pro-rata Iloairly rates for all tittle worked (,:tell mouth if) excess of 240 hours; tittle fit excess of 270 hours shall be paid for lit the rate of time and one-half.

(b) Cnnthictons assigned to service on extended special tours will be paid for tile number of calendar days in such service, compensation determined by liividing tile monthly rate for this class of service by the number of days if) the month lit which the service is performed.

(c) Road service performed by conductors on specifled layovers or relief days will be credited as provided in Rule 1 and paid for tit addition to till other earnings for the month.

(d) When required to perform station duty, load trains, or any extra service other than load service, such service will be credited on the hourly basis and

373

paid for in addition to all other earnings for the month, with a minimum credit of three (3) hours for each call.

RuruE 3.-Extra conductors performing road service in the place of regularly assigned conductors or on extra assignments will be paid in accordance with (heir years of service the compensation a regularly assigned conductor would receive for the same service, which will be determined, in the case of a regularly assigned run, or a trip over the same district, by dividing the monthly wage by the number of trips (initial terminal to final terminal) required for a month's work.

Rune 5.-Not less than ninety-six (Oli) hours off duty each month in 24consecut4ve-hour periods, or multiples thereof, will be allowed at designated home terminals.

The distinguishing feature of the rules quoted above, which marks Viola off from the normal type of agreement covering employes on the railroads, is the method of paying for overtime. The scheme upon which the rules are based was laid down by the United States Railroad Administration during the pe:iod of federal control of the railroads. It wits recognized that the general principle of an eight hour day with pay for overtime should be as applicable to the conductors as to other classes of employes, bill that owing to the peculiar nature of the conductor's work, which frequently requires him to be continuously on duty for long stretches of hours followed by relatively long periods of rest or layover, it would be unduly burdensome to the carrier to calculate overtime rates on the completion of each eight hour stretch of duty. Accordingly, the formula was devised, and later incorporated by the Pullman Company in its rules, of a 240 hour month and a monthly wage with overtime payments for hours worked in excess of 240 hours in any month. But this formula, designed purely to meet the problem of overtime, should not obscure the principle underlying the rules which, as with other classes of employes, is that of the eight hour day. Rule 1, establishing 240 hours as :1 basic month's service, means 30 days of 8 hours each. Rule 5 in substance provides for all average of one day's rest per week. From the nature of the rules one would conclude that conductors, like other classes of employes, are being paid on as hourly besis, the ally difference being that overtime payments are not made until 240 hours have been accumulated.

Thus if a regularly assigned conductor accllmubutes, let us say, 230 hours during the lnonill, he is paid for each of those ]tours, amt he is also (mater the guarantee provision of Rule Y (a)) paid for the den extra hours during whic2: he performcal nn service. Similarly, if he works for, say, 275 hours, he is pail for encll of those ]tours, the last five of the hours being at the rate of time and ono-half under Rule 2 (a). Thus a regularly assigned conductor who works the full month is paid for all hours for which he rccelves credit during the month whether those hours be less than 240 or more than 240. The only exception to this general lainciple, and it is the exception which proves the rule, is that conductors assigned to service ml extended special tours are paid on a calendar day basis (Rule 2 (b)). Extended special tours are nor. i:lvolved in the cases before us. Apart from extended special tours, regularly assigned conductors who work a full month are in fact paid for all hours of work with which they are credited during the month.

The question naturally arises, why should not extra conductors similarly be paid for all hours of wortr (hiring :1 month? The company's method of payment produces a curious result. If an extra conductor deadheads for eight flours on Monday and makes a special service trip of eight hours on Tuesday, lie is paid for two days, and since a day's pay is nothing more or less than payment for eight hours at tile hourly rate arrived at by dividing tile monthly wage by 240, ire is paid for every hour he works during the days in question. If, however, he deadheads for eight hours on Monday and then goes into special service for another eight hours on the same day, and does not work at: all oil Tuesday, he is paid for only one day's work or eight hours, the remaining eight hours being merely credited but not paid for unless he accumlllntes overtime during the month; and since, beginning with the depression extra conductors have almost never obtained enough work during the month to rui into overtime, the result is that for all practical purposes an extra conductor who is fortunate enough to render sixteen hours of service over two (lays will be paid for those sixteen ]tours while an extra conductor who performs the

374

harder assignment of working for sixteen hours on one day will be paid for only eight of those hours. Similarly, an extra conductor who is fortunate enough (and this has rarely happened since the depression) to work for 241 hours during a month is paid for all of those hours, whereas a conductor who works for 23:1 hours will be paid only for the number of days lie worked, which normally means that a portion of the hours will not be paid for at all.

Results as manifestly unfair as these, which could not happen in the case of regularly assigned conductors (save if they worked on extended special tours, which are infrequent) ought not to be derived from the Rules unless clearly called for by the Rules. The Company justifies its method of payment by reference to Rule 3, which provides that extra conductors "performing road service in place of regularly assigned conductors or on extra assignments" will be paid the compensation "a regularly assigned conductor would receive for the same service, which will be determined, in the case of a regularly assigned run, or a trip over tile same district" on a trip basis. We take it that when extra conductors are deadheading on a pass they are not, within the meaning of Rule 3, performing road service "in the place of regularly assigned eonductors or on extra assignments." If so, Rule 3 with its trip or day's service basis of payment has no application to deadheading on a pass. In any event such method of payment is laid down by Rule 3 only in the case of "a regularly assigned run or a trip over the same district" and it is clear that these phrases do not include deadheading on a pass. It was conceded in the argument before the Referee that Rule 3 does not govern payment for deadheading on a pass, and we may therefore dismiss it as not applicable.

If Rule 3, with its provision for payment on a trip or day's service basis, is not applicable to deadheading on a pass bill is applicable only to active road service, tile very fact that the rule is thus restricted in its application implies that some other basis of payment governs deadheading on n pass. If Rule 3 had meant that extra conductors should be paid on the day's service basis for every kind of service which they render, it presumably would have said so. It did not say so, and the implication is that some other basis of payment was meant to apply to services not included in Rule 3. The only remaining basis of payment is the hourly basis, which must apply unless it can be argued that deadheading on a pass, when tacked on to other items of service preceding or following it, can be said to be an extended special tour, which also provides for payment oil a (lay's service basis. But it lias been settled by Decision No. 27 of the Conductors' Board of Adjustment, April 17, 1919, in tile case of Conductor Knepper, that service of this sort does not constitute an extended special tour.

By long standing practice an "extended special tour", which is not specifically defined in the miles, hits been treated as an operation of 72 hours or more in special service. In the Kilepper case the services performed stretched over more than 72 hours and the conductor was paid on a day's service basis. But the service consisted first of a deadhead movement on a piss from St. Louis to Meridian, where Knepper flicked up ids special party; a special trip in service from Meridian to Memphis, and return; and a deadhead movement with equipment from Meridian to Jackson. The Company lumped all of these items together as constituting an extended special tour and paid the conductor on a day's service basis. Summarizing the decision by the Conductors' Board of Adjustment, the Company says:

"The Conductors' Adjustment Board ruled that the time silent by Conductor Knepper in getting from St. Louis to the point where he picked air his special party, and in returning to St. Louis after conrpletion of the movement with the special party, should not be considered as component parts of an extended special tour and therefore separated these going and coming movements from the special service movement and awarded * * * separate hourage cralits * * * for the (leadhead on pass, deadhead will) equipment and held for service operations spent in going to and from the points at which he ph,kcd up find left the special party trip. As a result of such separation of houraole credits Knepper's actual time with the special parts movement amounted to less than 72 hours, find therefore could not be considered as an extended special tour."

Information has been obtained from the Company showing that Kneplar at the time of this service was au extra conductor. As a result of the decision

375

Knepper was not only credited separately with the hours spent deadheading on pass, deadheading with equipment and held for service, but he was paid for these hours, and the decision established the principle that these separate items of service cannot be combined with a special service trip to make up all extended special tour payable under Rule 2 (b) on the day's service basis. But if these items of service are to be segregated and separately credited, and are not to be paid for on the day's service basis under Rule 2 (Ir), how are they to be paid for? They cannot be paid for on the day's service basis under Rule 3. Since these are the only two rules which provide for payment on a day's service basis, and since neither applies to deadheading oil a pass or held for service items, these services must necessarily be paid for on some other basis and the only other basis is the hourly basis. And in fact these items were paid on the hourly basis in the Knepper case, following the decision. But the Company claims that this method of payment resulted solely from the fact that the inclusion of the hourly credits for these services brought Krrepper's total for the month to over 240. The carrier asserts that lard Kneppei s total, with these items included, been less than 240 hours, he would not have been paid oil the hourly basis, but would have been paid oil the day's service basis. But where Is the justification for that? Ifs could not be paid for these disputed items on the day's service basis under Rule 3 or under Rule 2 (b), and there is no other rule in the agreement which authorizes payment on a day's service basis.

Bill the Company asks: Where in the rules Is it provided expressly that these services shall be paid for on the hourly basis? Is there not just as much warrant for paying oil the day's service basis when overtime is not involved as for paying oil the hourly basis? Not at all. Rule 3 and Rule 2 (b), by providing for the day's service basis in the case of extra conductors performing active road service, and in the case of extended special tours, must mesa, by all principles of construction, that in the case of all other services payment shall be oil some other basis than that of a day's service.

Stripped to its essentials, the view which we take is this. Tire day's service basis of payment is exceptional. It is provided for In only two places in the rules. It is limited to two types of service, neither of which include deadheading on a pass. The whole implication is that this exceptional method of payment applies only in the instances specified in the rules and cannot be extended to other lu.ctances not so specified. We have seen that regular-] y employed conductors working the fall month receive payment for all hours credited. We have seen that extra conductors who work for more than 240 hours receive payment for all hours credited. We think, therefore, that the hourly basis of payment. is the normal basis of payment; that the day's service basis is exceptional; and that it would be a distortion of the rules to add to the exa·ptions types of service not included in them. The interpretation we have arrived at seems to us the natural one and it avoids the anomalous. mid unjust discrimination in payment as between extra conductors working more than 240 hours and extra conductors working less, and between extra conductors performing two items of service oil a single day and being paid for only one and extra conductors performing the same two items in two separate days arid being paid for both days. These anomalies are sufficient in themselves to east doubt upon the Company's method of payment and to indicate that that method ought not to be approved unless clear justitication earl be found in the rules. No clear justification can be fumrd in the rule;, but on the contrary their most natural Interpretation is that payment should be oil the hourly basis except where expressly provided otherwise.

Before concluding this portion of the opinion, we must note two other precedents wldch bear upon the question of deadheading on a pass. United States Railroad Labor Board Decision No. 4004 decided in substance that a conductor deadheading on n pass should "receive pay at service or pro rata rates for 8 hours for each calendar day deadheading" The reason for tire limitation to 8 hours scents to have been that conductors deadheading on a pass have no responsibilities, unlike conductors deadheading with equipment, and that therefore it would be unjust to pay them for more than 8 hours. Whether or not the distinction is a sound one unit can be justified by the wording of the Rules, we need not inquire, for it has been applied and acted upon constantly for over 10 years (at least so far as crediting only up to 8 hours is concerned) ; and the employes are not askfra Its to find that they. are entitled to more than 8 hours for deadheading on a pass, even though the

376

elapsed time may be 10 or 12 hours. Moreover, while the language of the decision seems to allow 8 hours even though the elapsed time is less than 8, the practice has been to allow credit only for the elapsed hours; and the employes are not asking for more than this.

It will be noted that the Labor Board's decision was that conductors should "receive pay" (and not merely credits) for deadheading on a pass, and this decision is strongly relied upon by the employes in support of their contentions in the cases before its. The Company, however, points out that file question before the Board was the claim of certain conductors "for credit on the hourly basis" for all hours deadheading and that the reference in file decision to payment was therefore of no significance. Oil the other hand, the carrier contended (as shown by the report of the case) that for deadheading on a pass the conductor "should be ])aid his regular monthly rate for the number of days consumed while deadbeading" and be credited with 8 hours in each 24 hour period. Thus the carrier itself talked the larigttage of pay as well as credit and ive do riot think it proper to assume that the Board's decision in the matter of payment was merely superfluous. At least it seems to imply a general understanding that when a train is credited for something, he should be paid for it, which is all that the employes maintain in tire cases now before us. The Company replies, however, that there is nothing in the decision to show that it applied to the method of paying extra conductors. Whatever view is taken of the decision, we thinly it is helpful to the employes' contention in the cases before us, since presumably if the Board had intended to exclude extra conductors from the effect of the decision, something would have been said about it. The cases before us, however, do not turn upon the precise effect to be given the Labor Board decision in the matter of payment, for the employes' claims for payment for file hours credited in deadheading can be sustained without regard to file derision.

But tile Company urges with some force that no claim by extra conductors, deadheading on a pass, for payment on ally other than file day's service basis (except where overtime was involved) was ever made until soluetime in 19:12 or about six years after the Labor Board decision, which apparently brought to their attention for the first tittle that deadheading- should be paid at the hourly rates. The Company therefore asserts that what the employes are now asking is contrary to the practice and constitutes in effect a request for a new rule. The employes, on the other hand, state lleit prior to the depression extra conductors very frequently worked the fill] 2411 hours and that. it is only since the depression, which has involved the ln.)ing off of many conductors and the working of extra coucluctors for inueb less than the 210 hours a month, that the question of payment for deadheading on the hourly basis has become acute. Tliey further conternl that it,(, inetlind of calculating the payment of extra conductors is a complicated laid confusing one, as indeed it is, and that many conductors leave undoubtedly been ignorant of their rights. On the whole, we do not think file evidence ,justifies a finding that the employes have ever deliberately accepted an interpretation of file rules which would bar their claims in the cases before us, and in the abscnee of such tin accepted interpretation the mere failure to prosecute chlas would not ,Justify our refusing to consider them. We have reached this conclusion the more readily shove apart, from general statements there is nothing in the record In tiny of the cases to show flow often prior to the depression extra conductors were paid on the basis rre\V complained of. The ('ompally admits that since the depression it has spread the work out among tile extra conductors, so that we cannot dismiss :is unfounded the employes' contention that it is this practice which lras brought the question of payment acutely to the forefront.

To resume tire analysis: We have seen that the Labor Board decision in 1920 limited payment for deadheading oil a pass to 8 hours in a calendar day. The qucetion of winit is meant by a calendar day has been clarified by the Mediation Amreement between the parties, dntevl Tune 15, 1932, and the subsequent practice. Tlie principle wits established of splitting the 24 hour period at midnight so that, for example, if a man deadheaded on a pass front 4 P. \I. on a Alonday to 8 A. 117. on Tuesday, lie would be entitled to 8 hours credit for Monday and 8 for Tuesday, and not for a single stretch of 8 hours out of the 24 in question. This principle of treating the day on a midnight to midnight basis is not disputed by tile Company and is conceded to apply to the case.- before its.

377

The Mediation Agreement just referred to disposed of a number of claims of conductors and provided that they should be paid as presented. These claims consisted mainly of claims for deadheading on a pass and held for service, and involved the same principles as in the cases now before us. Six of the nine conductors involved, according to information furnished by the Company, were extra conductors, but the Company maintains that the only reason they were paid on the hourly basis for the time credited and not on the day's service basis was because the inclusion of the contested time brought their monthly hours to over 240. The agreement is sit least evidence of a practice which the Company does not dispute, namely, the payment of extra conductors for all hours credited where the total time is in excess of 240 hours, as contrasted with the Company's insistence upon the day's service method of payment where the total hours credited are less than 240. This is an anomalous result upon which we have already commented.

We may now summarize the principles governing the correct method of paying extra conductors for deadheading on a pass:

1. Deadheading on a pass is not payable on the trip or day's service basis under Rule 3.

2. Deadheading on a pass cannot be combined with other items of service to produce an extended special tour and therefore is not payable on the day's service basis tinder Rule 2 (b).

3. Since deadheading on a pass cannot be paid on the day's service basis under either Rule 3 or Rule 2 (b), and since these are the only rules which provide for such a method of payment, the method of payment must be something else, for otherwise these two rules would not be limited to the specified types of service which they cover. The only other possible basis of payment Is the hourly basis, which, with the exception of the two types of service covered by Rules 3 and 2 (b), is !it fact the basis on which all conductors are paid tinder the agreement, the peculiar form of the agreement being necessitated by the desire to exclude overtime rates after the first 8 hours. This peculiar form cannot, however, obscure the fact that, with the exceptions noted, regular conductors working a full month are pall for every hour credited, whether the hours be less than 240 or more. Where the hours are less than 240, regularly assigned conductors are paid for the hours credited, at least if they work the full month, and are paid in addition for the difference between the hours so credited and 240 hours-a guarantee of a month's pay. Extra conductors are excluded from this guarantee, bill to suppose that they differ otherwise from all other conductors in not being paid for hours credited is to find something in the rules which is not there.

4. As a result of precedents which have been accepted by the parties in interpreting the rules, deadheading on a pass in excess of 8 hours will be credited (and therefore tinder our decision paid for) only to the extent of 8 hours; deadheading on a pass for less than 8 hours will be credited (and therefore tinder our decision paid for) only for the elapsed hours; and for the purposes of credits (and therefore of payments) the calendar day begins and ends at midnight.

Held for .service.-As in the case of deadheading, the Company credits held for service items but does not pay for them except (a) where the inclusion of the hours brings the total for the month to over 240, in which cane the Company pays on the hourly basis, and (b) where the held for service item is the only Item credited on a particular day, in which case the Company pays for it on the day's service basis. The question of the proper method of payment,, however, Is not quite so simple as in the case of deadheading.

It Is evident that when a conductor is held for service, the thne during which he is held is considered, and properly so, as service time. Thus the Company's printed instructions to its conductors direct them to enter on their time sheets (in which space is provided for the purpose) the time spent while held for service where such time is not included as it part of a regular layover. These instructions do not constitute an agreement or any part of the rules on which the conductors rely, but they do at least indicate the accepted practice of treating held for service tittle as service which is to be credited and under certain circumstances paid for. The Company, as has been said, does in fact pay for this service under the circumstances already described. The claims which were paid as a result of the Mediation Agreement of June iG, 1032, referred to previously, involved held for service items credited during days when other items such as deadheading were also credited and certain of these items were

378

paid oil the hourly basis. As In the case of deadheading, however, the Company contends that these payments were so made only because with the inclusion of the held for service hours, the total hourage exceeded 290. Arid the employees make the same contention as in the case of deadheading, that hours which are credited should be paid for whether overtime is involved or not.

There has been some argument to the effect that when a conductor is held for service he is in reality performing no service whatever, and that if the Company does, under certain circumstances, pay him for it, the payment is a mere gratuity and the Company is doing something that it is not required to do. On behalf of the Company it is said that some years ago in the case of extended special tours the Company voluntarily adopted the practice of crediting eight hours for each day's service, notwithstanding the provisions of Rule 2 that conductors would be credited with all hours worked, except hours of service on such tours; and that the Company did this, although not required to do so, in order to preserve the hourage accumulations of conductors when assigned to tour service. (A conductor, for example, has accumulated 236 hours of credit. A few days before the end of the month lie is assigned to an extended special tour and unless credited with eight hours for each of the tour days, he will lose the overtime payments which be would have received if he had worked for the remaining days of the month oil n regular assignment.) Later, the Company argues, this equitable principle was extended to held for service time. But while the crediting of hours on ail extended special tour may be a gratuity because of the peculiar language of Rule 2 (a) (a point which we do not decide), there is no similarly limiting language in the case of held for service. On the contrary, whatever may be the situation in the case of extended special tours, the rules show clearly that all other service must be credited. Rule 2 (a) itself provides that conductors will be credited with all hours worked except in tire case of extended special tours. The only real question, therefore, is whether held for service constitutes service. If it does it must be credited and its crediting is not a gratuity.

The instructions already referred to and tile fact that the Company credits, and sometimes pays for, held for service time indicate that it is regarded as service. The rules, fairly construed, lead to the same result. Rule 1 (a) expressly provides that deadhead hours shall be counted as service hours. From tile point of view of the Company and the conductors alike there can be no real difference between deadheading on a pass and held for service. Neither operation is revenue-producing. When a conductor is deadheading oil a pass he is moving to get to revenue-producing work. When lie is held for service lie is waiting to get to revenue-producing work. In both cases he has no responsibilities, but he is in the service of the Company. If the one service should be credit(,(] the other should be credited. Rule 1 (b) is still more significant. It provides that "service time shall be computed as continuous for each trip from the time required to report for duty until released", subject to a deduction for rest at night when sleeping space is reserved, up to a maximum of four hours for the first night arid six hours for succeeding nights. No other deduction is provided for. Under this rule, if sit extra conductor deadheads with equipment from A to li, is held for service at B for a certain length of tinle, and then returns from B to A in special service, the time in which he is held for service Rt B must necessarily, under Rule I (b), be included in his continuous service time and must therefore be credited. Tile crediting cannot be (]settled to be a mere gratuity.

This much being established, it is pertinent to note, before determining the correct method of payment for the time so credited, that the same practices which have been established in the crediting of deadhead hours oil a pass have also been established in crediting held for service hours. If the held for service hours exceed eight in a given day only eight are credited. If they are less than eight only the elapsed hours are credited. The employees do not question this practice and we therefore accept it for the purposes of the cases before us.

The employees contend that held for service time should he paid on the hourly basis under tire provisions of Rule 2 (d). They say that it is "extra service other than road service" within the meaning of Rule 2 (d) and therefore under that rule must be paid for on the hourly basis. But the Company contends that the provision in Ride 2 (d) for a nttnhimin credit of three hours "for each call" implies that the service to be laid for under that rule must be performed pursuant to a "call" and that when a mail is held for service he can

379

hardly be said to late been called. The fact that a maximum credit of eight hours for held for service time in a calendar day has become the established practice, whereas if Rule 2 (d) applied there would presumably be no such maximum limit, and the fact that if the held for service time is less than three hours the actual thus is credited, whereas Rule 2 (d) requires a minimum of three hours for each call, seem to show that Rule 2 (cl) has not been considered as applicable to time held for service, despite the all-inclusive language of the phrase "any extra service other than road service."

It is not necessary for us to pass on this question since Rule 2 (d) is not essential to the employees' case. Once it is established that thue held for service constitutes service time, which must be credited, the same result follows as in the case of deadheading. The time cannot be paid for on the day's service basis under Rule 3 because the service is not road service, and it cannot be paid on the day's service basis under rule 2 (b) because it is not part of an extended special tour. The time must, therefore, be paid for on some other basis, and the only other basis possible is the hourly basis.

But held for service time presents one comldicalion not present in the ease, of deadheading. If an extra condu^_tor is performing road service within the meaning of Rule 3, ate is paid on the trip basis and not the hourly basis. The trip basis is determined by dividing the monthly wage by the number of trips required of a regularly assigned conductor for a month's work between the same terminals. The record (PC-105) shows that a round trip run between Chicago and New York is treated as a five day trip; that is to say, a regularly assigned conductor would normally be required to make six such trips in thirty days. He would not be required to make more than that, for he is allowed a layover at both terminals. Similar)>, as PG-106 shows, a round trip operation between St. Louis and New York is treated as a five clay operation. An extra conductor, then, working on a round trip between Chicago and New York or St. Louis and New York would, under Rule 3, fit the cases referred to, be paid for five days, which is the equivalent of forty hours. His actual elapsed time on the two trains, less his sleep deduction, might, however, be less than forty hours. He would still be paid the equivalent of forty hours, the theory being, as we understand it, that tire five day allowance includes a normal layover period at both terminals. Now the practice has been, and it is not questioned by the employees, to compute the time under Rule 3 in the case of a one-way operation between, say, St. Louis and New York, by dividing in half the number of days allowed for the round trip operation. An extra conductor, therefore, assigned to the run (rG106) between St. Louis and New York would, as we mtderstaud the practice, be paid for two and one-half days. Now suppose that on arrival in New York from St. Louis he was held for service for a couple of hours and was then seat deadhead with equiptneut or on a pass to some other point. He would be paid two and one-half days for the run to New York and (in our view) be paid for the hours deadheading (up to eight in the case of deadheading on a pass). Should he also be paid for the hours held for service in New York? It might well be that the two and one-half day allowance for the St. Louis-New York run exceeded the elapsed time of the run less the sleep allowance. The excess would represent a layover allowance and lie would be paid for that. If he were also paid for the held for service time, he would be paid twice for the same thing. That would obviously be mtjust. The employees do not ask for double pay, and the rules should not be go construed as to require doable pay unless such a conclusion is necessitated by express language or unavoidable implication.

In applying Rule 3 we think it fair to hold that where the time cotnppled on a trip basis is that allowed a regular assigned conductor and includes a layover period, held for service time should not be included except to the extent that it exceeds the normal layover. But where the time paid for a trip under Rule 3 equals or is less than the time credited under Rule 1, no layover is included, and the held for service time which follows should be credited and paid for.

Before considering the details of the particular claims iri P0.105 one further matter must be noted. Toward the end of 7934 the employees' representatives prepared for discussion with the Company a revised set of rules. Early in January 1936 the Company declined to consider the proposed revision because certain of the desired changes involved increases in pay and the so-callett Washington Wage Agreement, of April 26, 1934, provided among other things that changes in basic rates of pay would not be requested by any of the Carriers

380

or their employees prior to May 1, 1935. Following this refusal (if The Pullman Company to discuss the proposed revision, the employees sought the services of the National Mediation Board on .January 14, 1935. While the matter was pending before the Mediation Board, and after the biay 1, 1935, deadtae fixed in the Wnhinglon Wage Agreement had expired, the employees took up with The Pullman Company again the question of tile proposed revision, and at about the saine time withdrew their request for the services of the Mediation Board. Confereimes with the Company in June 1936 proved unavailing; the services of Life Mediation Board were again invoked and the question is apparently still pending before that Board.

Copies of the proposed revision as submitted to tile Mediation Board !it July 7935 have been made a part of the record before us. It appears that. the principles which we have arrived at in this opinion are in substance and with minor variations contained fit the revised rules which the employees are seeking. 'File Company has urged upon us that the character of the rules being sought by the employees shows very clearly that what they :Ire seeking fruin our Bound is precisely what they are seeking front the Mediation Board, namely, the establishment of new rules and i;ut the interpretation of existing rules. Our ]tour([ is, of course, without jurisdiction to establish new rules, and the fact that the employees have previously invoked the services of the Mediation Board is, in the Company's view, evidence Ihat the employees realize that they are seeking new rules, and not the interpretation of the existing rules.

But an examination of the rules proposed by the employees discloses that they do not by any means consist wholly of new rules. Some of the existing rules are carried over intact and without change. With respect to the rest, which are to be revised, portions are clearly new. Other portions are nothing but codifeations of interluetathmrs which have already been established, and which are not questioned by the Company. For example, the calendar day is to run from m_dnight to midnight. Deadheading on a pass is to receive a maximum credit of eight hours in each calendar day. An extended special tour must be seventy-two consecutive hours or more in duration. All of these principles are now estahlislied and accepted, although not specifically mentioned in the existing rules. They are simply interpretations of the existing rules, which should be spelled out in any future revision. If the interpretations which we have arrived at ht this opinion, and which to a large extent are embodied in the proposed reviAon, are. as we think they are, ,justified :is a nuitter of construction, they are not new rules, amt life mere fact that they are included in the proposed revision does not establish the fact that they arc new rules. Admiltedly parts of the retision do constitute new rules, and for this reason the employees laid cause to seek the services of the Mediation Board. But together with these admittedly new rules, interpretations of the existing rules were also included, and it is perfectly consistent with what the employees have done to argue that the questions submitted to us. though covered by the proposed revision, also involve simply matters of interpretation.

381