NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Claim of the General Committee of the Order of Railroad Telegraphers Southern Pacific Company (Pacific Lines), that Extra Telegrapher R. O. Beaumont be paid 7 hours 15 minutes under Rule 8 of the Telegraphers Schedule agreement, for tine consumed in deadheading El Centro to Los Angeles, Calif., January 5th, 1934."
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier and the employee involved in this dispute are respectively carrier and employee 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 case being deadlocked, Willard E. Hotchkiss was appointed as Referee and on request Of the carrier a second hearing was held on July 1, 1936, at which the parties! argued the case before the division with the Referee sitting as a member thereof.
An agreement bearing date of September 1, 1927, as to rules, and May 1, 1927, as to rates of pay, is in effect between the parties.
Role 8 of the agreement is cited, and there is also cited a memorandum of agreement bearing date of November 27, 19,31, which agreement contains agreed Interpretations of Rule 8 under various circumstances set forth. Rule 8 reads as follows
"RL'bG S. Extra telegraphers will be paid for time ransomed for deadheading and relief service, but shall not receive compensation for this service to exceed one day's pay of the telegrapher relieved for each 24 hours or fraction thereof en route to and from the assignment. This will not apply to extra telegraphers deadheading to assert seniority rights over other extra telegraphers.
"Ex,tn,plr.-Extra telegrapher. deadheading '.\' to 'B' consuming three (3) hours; rate of pay at 'B' .7000 cents per hour; amount $2.10; then, if the extra telegrapher performs eight (8) hours' service on day deadheading, he will receive eight (8) hours' pay in addition to the deadhead allowance."
Sections 1 and 2 state the purpose of the memorandum of agreement of November 27, 1931, and set forth the headquarters for the several divisions of the Sonihern Pacific Company. Sections a, 4, and 5, which are the pertinent sections of the memorandum, are as follows
"(3) Superintendent of each of the four divisions designated by name in Section 2 shall inform each extra telegrapher on such Superintendent's respective division which of the two stations named on that division will
"If the headquarters of an extra telegrapher is changed as provided in this Section, compensation for the first deadhead service for which ordered, from or to headquarters, subsequent to the change, shall be as follows:
"Subsequent deadhead allowance from headquarters shall be computed as provided in Section 4.
"(4) An extra telegrapher ordered by proper authority to deadhead for service shall be paid for time consumed deadheading as prescribed in Rule #8 of current Telegraphers' Agreement, as follows
"(a) When deadheading for service, oil instructions from proper authority, shall receive deadhead allowance from headquarters to station ordered, except as hereinafter provided.
"(b At conclusion of service at a station, if not ordered elsewhere for service, sball be ordered to deadhead to headquarters and paid deadhead allowance from station last worked to headquarters, except as provided in paragraph (d) of this Section.
"(c) At conclusion of service at a station, if ordered to deadhead to another station for service, allowance for deadhead shall be from last station worked to station ordered, except, if service to be performed at the station to which ordered, will not commence oil the next date following the beginning of the last day's service at the last station worked and if available passenger train service will permit tile extra telegrapher to reach headquarters and then reach the station to which ordered in time to perform the service required, he will be paid deadhead allowance from the station last worked to headquarters, and from headquarters to the station ordered, provided he makes the trip to headquarters and thence to the station to which ordered.
"(d) If ordered to deadhead to headquarters, and, if before reaching headquarters, extra telegrapher requests and receives permission from proper authority to remain at some station other than headquarters, awaiting work, will not be paid deadhead allowance from station last worked to headquarters, but if subsequently ordered to deadhead to a station, for service, shall be paid deadhead allowance from headquarters to station ordered.
"(6) The provisions of this Memorandum of Understanding will not apply to extra telegraphers deadheading to assert seniority rights over other extra telegraphers."
As set forth in statement of claim, extra telegrapher Beaumont deadheaded Los Angeles to El Centre oil December 18, 11,3x, to displace extra telegrapher Shearer. Beaumont was relieved at El Centro January 6, 193-1, and deadheaded to Los Angeles, claiming 7 hours 1.5 minutes tixue for this deadhead trip.
OPINION OIL TILE BErI,'REE--The language of Rule 8 and of the Blemorandum of Agreed interpretations dated November 2`7, 7931, is ambiguous as applied to this case. Decision must, therefore, be drawn from the context and from such reasonable and fair inferences as (-,in be made therefrom.
In a recent ease in which it would have been correct usage to have interpreted the Phrase "before or after a holiday" to cover action taken be:ore a holiday and the same action taken after a holiday, it was held that the action in question must be restricted to one occasion nod that if taken before a leoliday it could not also be taken after the sane holiday. The reason fur that decision was not found in the language of the agreement as much as it was in con-
sideration of what must have been in the minds of the parties and of what appeared fair and equitable in all the circumstances.
There are many cases in which the word "to" by almost inescapable inferences must be interpreted to mean "to and from." There are also circumstances in which language used in one place has to be considered in connection with language used in another place in the same instrument. Moreover, language of agreements is sometimes left ambiguous because the parties cannot agree to au interpretation but can agree to the ambiguous language and, therefore, take the risks involved in any later interpretations of such language.
In all cases an authority which is called upon to apply the language of an agreement to a specific ease must study the language, the context, any circumstance which would throw light on the intent of the parties, and, if then the issue is still in doubt, the interpreting auhority must exercise judgment as to what is fair and equitable.
Studying the context of the memorandum of November 27, 1931, leads to a strong inference that deadhead time is to be paid for only when the employee is traveling under orders. The equitable basis of the payment is that the orders of the carrier which obligate the employee to report at a point away from his base causes him to lose time which he would be working if the carrier had utilized his services at the base. Such an equitable basis for payment is lacking in the case of an employee who, of his own volition, finds it advantageous instead of waiting for an opportunity to displace a junior near at hand decides to travel away from his base to exercise his right of displacement Exactly the same equitable considerations apply in respect to deadheading back to the base after temporary employment as result of displacing a junior employee.
Since, therefore, the rule is ambiguous, since the context of the Memorandum of Agreement implies that deadhead time is to be paid while traveling under orders in the circumstances outlined tberein, and since there appears to be no injustice involved in omitting pay for deadhead time returning to base from a point to which an employee has elected to go to assert displacement rights, it is held that deadhead time for such return trip is not contemplated by the agreement.