fiected the constantly varying circumstances of the various lines. For example, as pointed out in our submissions in the previous cases, more than 200 such changes were made between January 1, 1922 and the end of 1923. In 1924 through 1927 over 500 changes were made. In 1928 and 1929 approximately 200 such changes were made, and similarly the practice has involved changes both before and since these years. The history of this very Line 717 illustrates the number of changes to and from porter-in-charge operation that have been made in adjusting the service to seasonal or other changes in conditions.

As shown in detail in our submissions in the previous case, both the total number of porter-in-charge lines, and the number of porter-in-charge car trips has decreased since the mid-1920s. Moreover, it is there shown in detail that since the present agreement in 1936, there has been a substantial decrease in the car mileage operated by porters-in-charge, and a corresponding increase in the car mileage operated by conductors. It was shown that in 1938, for example, porters in charge operated only 6.5% of the total Pullman sleeping car miles and conductors operated 93.5%. In other words, despite the frequency of changes to or from porter-in-charge operations, such operations constitute only a minor fraction of the total business.

The decrease in porter-in-charge lines has continued since the last date available at the time of our submissions in the recent cases. As of December, 1941, the total number of porter-in-charge lines was less than at any of the previous dates for which figures are available, namely 1925, 1928, 1935, 1938 and 1939.

Today, as always, the porter-in-charge practice is associated with marginal operations. When practicable to do so, it is in the interest of the public, the Company and the employes, that these marginal lines be continued. If they are to be maintained, two considerations made it necessary that they be operated with porters in charge. The first is that a line from which the traffic has virtually disappeared, as the traffic disappears on this run during the winter season, simply cannot support a conductor. The second is that the service needs are so light that it would be indefensible waste to employ both a porter and a Pullman conductor to provide care for an average of five passengers, in addition to the care given by the regular train conductor and train crew.

Never in the history of this line has such an operation been carried on as that which the conductors' organization now asks this Board to force upon the Pullman Company. The conductors' work on Line 717 has always been only a part of their total assignment; they have never been employed to work on only one car. When the assignment was reduced to a single car, as it has been reduced many times, a porter in charge has invariably been assigned.

We submit that the claim should be denied, first, because there is no rule in the agreement, express or inferential, restricting the employment of porters in charge, and, second, because under the principles laid down by the Board the reasons heretofore stated fully sustain the assignment of porters in charge to Line 717.

OPINION OF BOARD: At the outset, for the purposes of this award, the claim will be segregated into (1) Reinstatement of conductors and (2) Pay for all time lost, reasons therefor appearing in the Opinion.

This is another "porters in charge" case and, as appears, the Carrier makes the same protestations that it has made in at least ten such cases that have been decided by this Board, viz., that it has never agreed to waive, modify or in any way change its inherent right to substitute "porters in charge" for conductors on its cars whenever in its judgment it saw fit to do so.

The Supreme Court of the United States in a unanimous decision has given a final and complete answer to that contention in the following language: "Moreover, the resources of the Railway Labor Act are not exhausted if nego-

tiation fails in the first instance to result in agreement. If disputes concerning changes in rates of pay, rules or working conditions, are `not adjusted by the parties in conference,' either party may invoke the mediation services of the Mediation Board, Sec. 5, First, or the parties may agree to seek the arbitration provision of Sec. 7." Virginian Ry. Co. vs. System Federation No. 40. 300 U.S. 515, 81 L. Ed. 789.

Carrier admits that the employes' organization has tried time after time to have a specific provision inserted in their agreement to limit the claimed power of the Carrier to substitute porters for conductors whenever it thinks it is to its best interest to do so. It seems the time has come to say, as the previous awards of this division have indicated but not specifically said, that today the Carrier has no such unlimited power or authority. Referee Swacker in Award 779 said, "Imagination refuses to encompass the possibility that the conductors intended to agree to any such optional arrangement," as contended by the Carrier in that case, and every similar case since, including the instant one. Or as Referee Mitchell put it in Award No. 1461, "Under the Carrier's interpretation of this contract, it has the right to destroy it."

It must be taken that the rule announced in Award No. 779, viz., "* * we should be furnished among other things the following criteria; other instances of comparable lines on which substitutions have been made; the history of the contested as well as the compared lines; reasons for the changes; changes in traffic volume." and the burden of furnishing this information is on the Carrier is the established rule of this division.

These criteria are matters which should be common knowledge to the Carrier, and in most cases to the employes. In any event they are matters that could be and should be discussed in conference, and would serve as a comparatively simple guide to both sides in determining whether a substitution or change should be made.

Carrier contends that the Board has no right or power to impose any such burden upon it. "* * * when such a collective agreement has been made the policy of the Act (Railway Labor Act) forbids the making of other and different contracts with individuals subject to the collective contract who have designated representatives, except after negotiation with such representatives. Indeed, it is not an onerous requirement of the employer and presumably where changes in business conditions, etc., arise at particular locations, such as appears to be true in the present instances involved in this case, there would be no difficulty in reaching a satisfactory adjustment of the general contract applicable to the particular situation." Order of Railroad Telegraphers vs. Railway Express Agency, Civil Action 2223 U.S. District Court, Northern District of Georgia, June 26th, 1942. Involves Awards 298 and 548 of this Division.

For a much stronger reason should this language apply where a carrier seeks to deal with individuals of another craft or class, not covered by the agreement.

Contention is made that Virginian Railway Case 300 U.S. 515, 81 L. Ed. 789, and this Georgia case, supra, involved the 1926 Railway Labor Act, while the dispute in the instant case arises under the 1934 Act as amended, ut the Court in the Georgia case says, "Thus, it embodied at least from te standpoint of the claim of the O. R. T. a dispute which in part arose after the effective date as amended, 1934."

But, says the Carrier, Section 6 of the 1934 Act as amended says that the thirty day notice of conference has reference only to "an intended change in agreements affecting rates of pay, rules, or working conditions." and, since "porters in charge" service is not covered by the agreement in the case at hand, Section 6 of the 1934 Railway Labor Act as amended has no application. There are at least two good answers to that contention here; (1) By the successive awards of this Board, the criteria or working formula to be

used in these cases has been written into this and all similar agreements. So it is in there. (2) Rule 55 says "all disputes between the Company and the conductors" will be conferred on "in accordance with the requirements of the Railway Labor Act."

Finally the Carrier says, we did not change any "rates of pay, rules, or working conditions" covered by the "agreement." The preamble to the agreement says it covers "rates of pay and working conditions of ell Pullman conductors employed by the Pullman Company." This surely includes these five men on the St. Paul District. It would seem, without being facetious, that the rates of pay and working conditions of these men were rather violently changed, and they and their representatives were entitled to be heard on these matters in accordance with Rules 55 and 56 which were subscribed to in their behalf.

Since it is admitted that these conductors are now working on the run, no order for their reinstatement is necessary. If such information should happen to be incorrect, the order is that they be immediately reinstated.

(2) However, it does not follow that they are entitled "to pay for all time lost" Until this award was announced, the Carrier was not aware that any rules had been violated, as no previous award had held specifically that conferences were necessary in these cases, although Referee DeVane said, "They (Rules 55 and 56) will govern should it be determined that the work in question belongs to the conductors." That the work in this case belonged to the conductors is best shown by the fact that it had been performed exclusively by them for five years prior to the change on Oct. 1, 1940.

Coming then to the question whether these conductors should be allowed pay for all time lost because of the substitution of porters on line 717: It does not necessarily follow that, because we reached the conclusion above in regard to the violation of the rules that they should. Another principle that must be considered as established is that conductors' runs as such were not frozen by the agreement. There still remains some discretion with the management in using porters when the conditions laid down by this Board have been met, and this is particularly true in regard to one-car operations necessitated by substantial decrease in traffic. No good purpose would be served by a repetition of the criteria above mentioned. We do not say that the Carrier can avoid the agreement by entering into contracts with other carriers, such as was done with the Canadian Pacific in this case but such a contract having been in force for years without objection by the employes is one of the conditions, together with the others that we may well consider in determining whether the Carrier's conduct in making the change was justified. We think it only fair to say that the changed conditions here did justify the use of the porters, and, since the agreement does not provide for any "liquidated damages" in case of violation, this Board will not impose them when it concludes that there was no showing of bad faith. The Employes' contention that this was an attempt on the part of the Carrier to drive an entering wedge for use of porters on transcontinental runs is not borne out by the record. Under the circumstances, we think claim for all pay lost must be denied.

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

That (1) Carrier violated the agreement and (2) Pay for all time lost is denied.

AWARD