December 15 to 25, 1938 incl., between Sioux City and Omaha, were Compensated at rates applicable to cooks assigned to cafe combination cars as established by agreement between the railway company and the organization representing that class.

"There is no provision in the agreement requiring the assignment of steward to a cafe combination car; neither has it been the established practice for a period in excess of 25 years to assign a steward to such type of car. The fact that cars 6908 and 6912 were previously classified as regular dining cars does not sustain contention of the employes that the manning of the car when converted into a cafe lounge car must be on basis of personnel assigned to a regular dining car. The question of personnel to be assigned to a car must be determined on basis of the class of the car when in service, and as the two cars referred to were, beyond question of successful contradiction, cafe lounge cars while assigned to trains 419-418 and 203-204, the manning of such cars by a crew of a class assigned to cafe combination cars and compensating such employes at the agreed to rates established for such class was proper.

"It is the position of the railway company that the personnel of crew assigned to combination cafe lounge cars 6908 and 6912 while employed in service on trains 419-418 and 203-204, and rates of pay allowed were in accordance with provisions of established practice in effect for a period in excess of 25 years, and was not in violation of the railway company's agreement with organization representing such class."

There is in existence an agreement between the parties bearing effective date of March 1, 1938.

OPINION OF BOARD: There can be no question, under Rule 1 of the Agreement effective March 1 1938, that no obligation is imposed upon the carrier to use stewards on cafe cars, and that chefs and cooks used on cafe cars are not entitled to any higher rates of pay than those expressly provided for such service. The sole question at issue in this proceeding, therefore, is one of fact: whether dining cars No. 6908 and No. 6912, as used on the runs here involved, were "regular dining cars" or "cafe (combination) cars," within the meaning of Rule 1 of the Agreement. The mere fact that these cars had been intended, and at. some previous time classified, as "regular dining cars" is not conclusive, since the carrier is free to convert regular dining cars into cafe cars; nor is the fact that some alteration has been made by the carrier in the normal use of regular dining cars conclusive of their conversion into cafe cars, since such alleged conversion might merely be resorted to as a subterfuge o effect changes in personnel and reductions in rates of pay. Whether or not there was an actual and bona fide conversion in this case depends, partly upon the types of cars previously used on these runs, and partly upon the physical characteristics of cafe cars in relation to those of regular dining cars. On the first of these matters the evidence is confused and conflicting; on the second of these matters the record is entirely barren of evidence. Under these circumstances the Board is not in position to reach an authoritative determination, and hence the case will be remanded to the parties for disposition in conformity with the views set forth in this Opinion, or for resubmission on a record adequate for adjudication of the dispute.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

AWARD