It should be observed that there were no qualified extra printer clerks available for the extra printer-clerk work, 6:00 A.M. to 8:00 A.M., on the dates involved, neither were any of the extra Morse telegraphers qualified as printer-clerks (Page 3, Paragraph 4, Statement of Facts). To have required one of the regularly assigned printer-clerks, all of whom were females, to perform the extra work in addition to filling her bulletined position, would have been in violation of the California Statute (supra). The provisions of the Telegraphers' current Agreement, likewise all contracts, are subordinate to the laws of the State and/or ation unless otherwise specifically provided in the Agreement or Contract there is no exception made in the Telegraphers' current Agreement; if there is conflict, the law prevails. All contracts and Agreements are negotiated with the status of the law in mind, and a contract or any part of a contract, the performance of which constitutes a violation of a law, is null and void from its inception. Agreements and contracts are subject to subsequent laws unless otherwise specifically provided for in the contract (there is no such prevision in the Telegraphers current Agreement) hence if the contract provides for an act which was legal at the time the Agreement was entered into, but subsequently that act becomes illegal, a failure to perform the illegal act does not constitute a breach of the contract, it ipso facto suspends the operation of the illegal clause, if and when it constitutes an illegal act. However the statute in question was in full force and effect at the time the Telegraphers' current Agreement became effective, that is, September 1, 1927, hence it must be admitted the contracting paties entered into the agreement subject to the provisions of the statute, and whether they did or not, the law still prevails and is superior to the agreement (contract). Therefore the Carrier was within its rights and not in violation of Telegraphers' Agreement in using Clerk Nief to serve as printer-clerk, 6:00 A.M. to 8:00 A.M., May 27th to June 13th, 1936. "

"Carrier contends that in using Clerk Nief to perform extra service, 6:00 A.M. to 8:00 A.M., on the dates involved in this claim, it did not violate any provision of Telegraphers' current agreement.

"Rule 16 of Telegraphers' current Agreement on which Petitioner relies as basis for his claim, is not applicable.

"Petitioner, in asking this Board to grant an Award in favor of claimants on basis cited is in effect requesting the Board to provide a new rule the granting of which is not within the power of this Board under the provisions of the Railway Labor Act, as amended, and if granted would be in violation of the California Statute, excerpts of which we quoted (supra).

"Even if Rule 16 of Telegraphers' current Agreement were applicable (which it was not), the law of the State of California governing the employment of women prohibits the working of female employes in excess of eight hours per day and the Carrier therefore, could not legally have required the claimants to perform the service for which Petitioner is now presenting claim to this Board.

"Based on the facts herein submitted and the controlling law hereinbefore cited, Carrier respectfully requests the Board to dismiss this claim."

OPINION OF BOARD: The carrier, requiring extra service of a printer clerk between the hours of 6 A.M. and 8 A.M. on the days involved in this dispute and there being no extra printer clerks available, assigned the extra

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work to Clerk Nief. The name of this employe did not appear on the official seniority lists of the telegraphers.

The petitioner contends that the carrier in making this assignment violated Rule 2 (c) of the agreement between the parties. This provides that "positions covered by this agreement will be filled by telegraphers taken from the telegraphers official seniority lists." The petitioner further contends that in the circumstances of this dispute the carrier was required under the rules of the agreement to call the employes regularly assigned to the succeeding eight-hour period, and to pay them under Rule 16 (b). This provides:

It is the conclusion of the Division that the carrier in assigning extra work covered by the telegraphers' agreement to an employe not on the official seniority lists of the telegraphers was in violation of Rule 2 (c) of the agreement between the parties. This rule is absolute in terms, is not modified by other rules in the agreement, and does not permit the carrier to assign extra service to employes not appearing on the telegraphers' official seniority lists even though there may be no extra employes available at the time for extra service. To protect itself against an embarrassment of this nature, the carrier may add additional employes to the seniority lists or be less generous in the extension of leaves of absence to extra employes. If the carrier fails to protect itself in one of these ways, it is under an obligation to call regularly assigned employes and to pay them for their service on an overtime basis. The fact that the carrier has paid the claimants for the number of days of work guaranteed under Rule 5 does not justify a violation of Rule 2 (c) of the agreement. This rule, while guaranteeing to regularly assigned employes a certain number of days of work during each month, does not prohibit the carrier from assigning extra service to them on an overtime basis.

The Carrier, having violated the rules in question, cannot escape its responsibility for such violations on the ground that Rule 16 does not require it to call any particular employe. The carrier in the circumstances is obligated to compensate some employe or employes who might have been called for the service in question. If no penalty were attached to such a violation, the rules involved would be meaningless. The petitioner, it will be noted, presented the claims in the names of the two employes who most naturally might have been called for the extra service. The Division accordingly concludes that the present claimants are entitled to compensation for the extra service for which they might have been called. The validity of this conclusion is attested by the fact that the carrier voluntarily made a settlement with Mr. McKercher under Rule 5 when an employe not covered by the telegraphers' agreement was assigned to extra work for which McKercher might have been called. Moreover, the carrier in its submission states that "petitioner was informed that if he could find any qualified employe of "BD" Office who was available to perform the service which clerk Nief rendered on the dates involved in the instant claim, that the Carrier would compensate those employes as a result of not having been used and because of having used clerk Nief, on the basis and for the same reason that the Carrier com-

48

pensated Telegrapher McKercher on June 10, 1936, as admitted by the petitioner."

The carrier insists, however that the present claimants were not available for extra service on the ~ays involved in this dispute. In support of this contention, it cited a statute of the State of California regulating the hours of work of women. Section 1 of this statute provides in part:

This presents an issue both delicate and difficult. The carrier at the outset questions both the authority and the propriety of the Division to pass judgment on this issue. It is to be remembered, however, that there is before the Division a dispute within the meaning of Section 3 (i) of the Amended Railway Labor Act which cannot be disposed of without passing a judgment on the issue presented. The Division cannot escape its responsibility in this respect merely because the task is delicate and difficult.

The carrier strongly insists, however, that, regardless of the power of the Division to pass judgment on the issue involved, a statute of a state must take precedence over the contract between the carrier and the Order of Railroad Telegraphers. The Division, however, is of the opinion that in the circumstances of this dispute the agreement between the parties is not controlled by the statute in question.

It cannot be seriously denied that Congress, under its power to regulate commerce between the states, has authority, subject to the limitations of the Constitution, to regulate the wages, hours, and basic working conditions of all employes of carriers engaged in interstate commerce even though some of these employes may be locally stationed and even though their work may have only indirect and remote connection with the actual movement of trains in interstate commerce. The Railway Labor Act of 1926 as amended in 1934, to which the Railroad Adjustment Board owes its existence, brought all em loyes of interstate carriers under the scheme of the national government for dealing with problems of industrial relations on interstate carriers. The Supreme Court in the case of Virginian Railway Co. v. System Federation No. 40, 300 IL S. 515 (1937) ruled that Congress had the constitutional authority to bring the backshop employes of an interstate carrier under federal control. In its opinion the Court said:

It is clear, therefore, that Congress has constitutional authority to enact arpropriate legislation regulating the wages, hours, and basic working conditions of all employes of interstate carriers.

It is, of course, undeniable that when Congress has enacted appropriate legislation regulating the working conditions of employes of interstate carriers, such legislation supersedes all state legislation in conflict with it. In this connection the case of Erie Railroad Co. v. People of the State of New York, 233 U. S. 671 (1913) is significant. The controversy arose in an action against the carrier by the State of New York for the recovery of a penalty for an alleged violation of a statute of New York specifically regulating the hours of work of telegraph and telephone operators. It was charged that the carrier on certain days required and permitted one of its telegraph operators to work hours in excess of those established by the state law. The car-

49

rier contended that the state law had no application because Congress, in the enactment of the Hours of Service Act, had exercised its constitutional authority to regulate the hours of work of these employes even though at the time of the alleged violation of the state law the federal law had not gone into operation. The court in sustaining the contention of the carrier, said in part:

The question, therefore, which must be decided by this Division in the disposition of this controversy is whether Congress in the enactment of the Railway Labor Act of 1926 as amended in 1934 has manifested its purpose to exercise to the exclusion of state control its constitutional authority over wages, hours, and basic working conditions of railway employes brought under the jurisdiction of the federal government by the Railway Labor Act. It is the conclusion of the Division that Congress has so manifested its purpose, and that the collective agreement involved in this dispute takes precedence over an inconsistent state law.

Congress in the enactment of the Railway Labor Act as amended established a unified scheme under which its policies with respect to wages, hours, and working conditions of employes of interstate carriers were to be formulated by the parties in conference with the assistance of two administrative arms of the government, the National Mediation Board and the National Railroad Adjustment Board. It is clear that Congress, if it had elected to do so, subject to the limitations of the Constitution, could have enacted a code establishing definite and in flexible standards of wages, hours, and working conditions of all employes of interstate carriers. Such a code, cearly enough, would have taken precedence over all state laws inconsistent with it. Congress, however did not elect to announce its policy in the form of an inflexile code. instead it created a unified scheme under which the parties, subject to government supervision, are authorized to regulate their own problems. The very heart of this unified scheme is the collective agreement between the carrier and the various labor organizations representing various classes and crafts of employes. Confusion and diversity of standards as to wages, hours, and working conditions would be the inevitable result if statutes of the several states were given precedence over these collective agreements. It is worthy of note in passing that under the Railway Labor Act, neither of the administrative arms of the government is authorized_to intervene in controversies and disputes relating to wages, hours, and basic working conditions until the parties have endeavored to settle such controversies by their own efforts.

Certain features of the Railway Labor Act clearly indicate that Congress in its enactment has manifested its purpose to exercise its constitutional authority to regulate the wages, hours, and basic working conditions of all employes of interstate carriers, and tat it has established a unified scheme to that end.

Attention is first called to Section 2 in which the purposes of the Act are set forth in detail:

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