of the National Mediation Board. The Management could not agree to a rule which necessitated relief programs and consequent additional employes when the pressure of the manpower situation was so aggravated. The creation of unnecessary jobs would have been contrary to the interests of our Nation at war. The Mediator suggested Rule 36 be adopted with suspension of its effect on Sunday work of occupants of seven-day positions until a propitious time after the war when relief programs could be agreed upon. The Mediator's suggestion was accepted. Article 3, Paragraph (b) of side Mediation Agreement dated May 20, 1942, quoted in the Management's Statement of Facts, was consummated.

Article 3 (b) has precedence over Rule 36. It is not limited to "employes necessary to continuous operation of the railroad." It states in unequivocal language, "occupants of seven (7) day positions, or those working in their places wen absent shall for the purposes of this rule be treated as though they were the relief employes." Relief employes are paid straight time for basic-day hours of service, such as that which gives rise to this controversy. The inclusion of Rule 36 in the agreement was contingent upon acceptance by the organization of Article 3 (b). The organization is now seeking immediate application of Rule 36, which would have the effect of vitiating Article 3 (b). This is improper, because the one provision owes its existence to the other.

1. That Sunday operation of the wood preserving plant at Sheridan is necessary to the continuous operation of the railroad.

2. That the treating engineers, locomotive operators and retort man (tank man) are employes necessary to the continuous operation of the railroad.

3. That the evidence found in Exhibits Nos. 1, 2 and 3, together with the fact that the plant operation necessitating the services of these employes has been on a continuous twenty-four hour day, sevenday week, basis since sometime prior to the effective date of the current agreement (July 1, 1942) substantiates their necessity as it is related to continuous operation of the railroad, and

4. In any event, until agreement is reached as provided for in Article 3 (b), straight time pay under that Article takes precedence over Rule 36.

In the light of the facts, evidence and circumstances recited herein, an award sustaining the contentions of the employes cannot be justified.

OPINION OF BOARD: The Organization contends that the employes in question should be paid time and one-half for Sunday work under Rule 36, as not within the excepted group of "employes necessary to the continuous operation of the railroad," who under the same Rule would be entitled only to straight time for Sunday work.

The Carrier meets the claim with two contentions. The first is that, pending the establishment of regular relief programs by conference between the General Chairman and the Assistant to the Executive Vice President, the effect of Rule 36 was suspended by Article III (b) of the Memorandum of Agreement entered into between the Organization and the Carrier on May 20, 1942, concurrent with the new agreement of which Rule 36 is a part. The Carrier's second contention is that in any event the employes are necessary to the continuous operation of the railroad and thus are entitled only to straight time for Sunday work under Rule 36.

Prior to the effective date of the new rules on July 1, 1942, Rule 24 of the Rules Governing Timber Treating and Lumber Yard Employes provided for straight time rate of pay as follows:

Present Rule 36 provides that the pay for work performed on Sundays and holidays shall be at the rate of time and one-half "except that employes necessary to the continuous operation of the railroad and who are regularly assigned to such service will be assigned one regular day off duty in seven (7), Sunday, if possible, and if required to work on such regular assigned seventh day off duty will be paid at the rate of time and one-half; when such assigned day off duty is not Sunday, work on Sunday will be paid for at straight time rate."

In other words, whereas all Sunday and holidays work had theretofore been paid for at the straight time rate, Rule 36 of the new agreement provided for time and one-half for all Sunday and holiday work, with the sale exception of "employes necessary to the continuous operation of the railroad and who are regularly assigned to such service."

As to such necessary employe, and not to employes in general, the rule provides:

(3) that if required to work on his regular day off, he shall be paid time and one-half, whatever day of the week it may be; and

(4) that if his regular day off is not Sunday, straight time shall be paid for work on Sunday, which is only one of his regular six days of work.

While the purpose of the rule is to allow a seventh day off, Sunday if possible, it recognizes the facts that some employes must work on Sunday if the Carrier's transportation facilities are to be kept running on that day, and that for such employes some other day must take the place of Sunday for relief purposes. It therefore provides that if Sunday is one of the regular six work days of an employe, he shall receive only straight pay for working on that day, and that, conversely, since some other day is his regular day off, he should receive time and a half pay if required to work on that day. He is thus put upon exactly the same basis as the employe whose day off is Sunday and who is required to work on that day.

It must be emphasized that the exception and all four clauses of it are new, and that by the express provisions of the rule all four clauses refer only to employee necessary to the continuous operation of the railroad. The new exception, therefore, necessitated arrangements for the relief of only those necessary eunployes. Being a new provision, the relief programs had to be worked out, which it was recognized could not be done by July 1, 1942, the effective date of the new agreement. Obviously, it was only the new requirement that made the relief program necessary, and the requirement did not extend to any but the "employes necessary to the continuous operation of the railroad," who were therefore on a seven day basis requiring relief.

Since Article III (b) of the Memorandum of Agreement refers only to the relief, it affects only that part of Rule 36 relating to relief, and only the employes for whom Rule 36 requires relief, namely, the employes necessary to continuous operation. They are obviously the only "regular occupants of seven-day positions" and the only employes for whom Rule 36 requires "relief employes."

Article III (b) provides that "until regular relief programs are agreed upon, the regular occupants of seven-day positions" (or in their absence those working in their places) "shall for the purpose of this rule be treated as though they were the relief employes." Thus, its only effect is that, pending the working out of the relief programs, the Organization and its members cannot complain because relief employes are not working in place of the regular occupants of the seven-day positions under Rule 36, for until then the regular occupants "shall for the purposes of this rule be treated as though they were relief employes."

Consequently in all other respects Rule 36 is in full operation and, if the employes in question are not employes necessary to the continuous operation of the railroad, they must under the rule be paid time and a half for Sunday work; there can be no serious question as to that.

The Carrier contends that, while it has not in the past ordinarily been necessary to run the timber treating plants seven days a week, it is now necessary; first, because due to increased traffic its need for replacement ties is so great that if the present plant facilities and crew are to produce the ties, the employes in question must be worked seven days a week; and second, because, on account of Order No. 7 of the Office of Defense Transportation requiring that tank cars be unloaded promptly, it is necessary to work those employes in question on Sundays.

But the question is not whether the Sunday work is necessary to comply with Defense requirements or whether it is necessary to keep the Carrier's System operating in general; the question is whether the Sunday work is necessary to keep the System operating for the actual transportation of persons and property on Sunday. While no award has yet decided whether these or similar employes are within the classification of employes necessary to continuous operation of the railroad on Sunday, there are several awards which define the general meaning of the term.

In Award No. 314 this Division said: "The question really is what work is necessary to meet the public demand for actual transportation on Sundays or holidays, or, in other words, what work is necessary for the continuous operation of trains." It repeated that exact language in Award 1614.

In Award No. 336 this Division said, "The fact that work is necessary on Sunday does not of itself prove that it is necessary in the continuous operation of the Carrier."

In Award No. 2272, where the same contention was made as here that Order No. 7 of the Office of Defense Transportation made the work necessary, this Division said: "If that were true, it still did not make it necessary to the continuous operation of the Carrier, as that phrase has been interpreted by this Division." In other words, Sunday work may be made necessary by various contingencies, such as O. D. T. orders, wrecks, and other circumstances under which it may be necessary if the operations in general are to be conducted with the greatest possible efficiency, economy and continuity. But the parties to the Agreement did not agree that Sunday and holiday work which might be necessary on those various accounts should be compensated at straight time, but only such work as was necessary in order to keep transportation actually operating on Sundays and holidays, as distinguished from ordinary week days. It is clear, therefore, that the Sunday employment of the employes in question is not necessary to the continuous operation of the Carrier as that term is used in Rule 36 of the Agreement.

The claim is governed by the awards cited above and must be sustained in full.

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:

AWARD