Organization did not request any revision of, or change in, Rule 45 at the time the Mediation Agreement was negotiated. It follows that Rule 45 remained in effect, and was so intended, notwithstanding the provisions of the Mediation Agreement. The guaranteed work week for Group 3 employes is observed, but is subject to the existence of an emergency beyond the control of the carrier as covered by Rule 45. Therefore, the Mediation Agreement did not affect the release of Group 3 employes from service for the duration of the emergency caused by the strike.

(Exhibits not reproduced.)

OPINION OF BOARD: The claims presented in this Docket are for pay lost by the various claimants for the time they were not permitted to work on May 24 and 25, 1946, during the strike of the Locomotive Engineers and the Trainmen.

The Carrier contends that because of the strike there was no work for the claimants to perform; that this situation was brought about by conditions beyond the control of the Carrier; that the situation is covered by Rule 45 of the current Agreement which provides that "Employes required to report of work at regular starting time, and prevented from performing service by conditions beyond control of the carrier, will be paid for actual time held with a minimum of two (2) hours."; and that at most the Carrier should only be required to pay these claimants for two hours under Rule 45.

The employes, on the other hand, contend that this situation is covered by Rule 40 of the current Agreement entitled "Pending Decision," Rule 60 entitled "Basis of Pay," the Mediation Agreement effective February 1, 1945, and paragraph 3 of Federal Manager of Government Controlled Railroads Notice and Order No. 1 dated May 17, 1946.

Rule 40 provides that "Prior to the assertion of grievances as herein provided, and while questions of grievances are pending, there will neither be a shutdown by the employer nor a suspension of work by the employes." This rule clearly applies to grievances between the Clerks' Organization and the Carrier. It is not applicable to the situation here.

Nor are we impressed with the suggestion that the question here can be decided on the order:; and instructions of the Federal Manager. This order was issued before the strike actually occurred and would seem to only require that the Carrier continue to operate under the rules and provisions of the current Agreement.

This leaves as a basis of the claims of the employes only Rule 60 of the current Agreement and the Mediation Agreement of February 1, 1945.

Both Rule 60 and Rule 45, in their present form, have been in current agreements between the Carrier and the Clerks' Organization since at least 1925. In some instances in the past the Carrier has treated the last paragraph of Rule 60, reading: "Nothing herein shall be construed to permit the reduction of days for the employes covered by this rule below six per week, excepting that this number may be reduced in a week in which holidays occur by the number of such holidays," as being an absolute guaranty by the Carrier of a six day week for the employes covered by the Rule. When this was done Rule 45 was also included in the same agreement.

Several decisions of this Division and one decision of the United States Railroad Labor Board also seem to have interpreted the last paragraph of Rule 60, or a similar provision, as being an absolute guaranty of a six day week for such employes. U. S. R. R. L. B. Decision No. 3865, Award Nos. 79, 341, 735, 3661. Some of these decisions were in cases where, because of conditions beyond the control of the Carrier, there was no work for the employes to do, yet, apparently, the provisions of Rule 45 were not thought to apply.

In this particular case these employes were not "required to report for work at the regular starting time" but instead were notified not to report for work.

It has always been recognized in the law of contracts that parties could contract for performance and be bound thereby regardless of the difficult or even impossibility of performance. If this was not the intention it could have been covered by proper conditions or limitations.

The current Agreement between these parties became effective February 16, 1944. Prior to that date there had been decisions by this Board holding that the second paragraph of Rule 60 constituted an absolute guaranty of a six day week for the employes covered by the Rule. If'the Carrier did not agree with this interpretation of the contract it should have insisted on a change of the Rule in the 1944 agreement.

The Carrier violated Rule 60 as claimed.

The Mediation Agreement effective February 1, 1945, expressly provides "Sixty (60) percent of the working force covered by Group 3 Rule 1 in each agency or office will be guaranteed six (6) days work per week, except that this number of work days may be reduced in a week in which holidays occur by the number of such holidays." This is an express guaranty of six days per week without condition or limitation except as therein expressed. Therefore the Group 3 claimants were also entitled to pay for the time lost on these two days.

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 the Carrier violated Rule 60 of the current Agreement as to Groups 1 and 2 employes and violated the Mediation Agreement effective February 1, 1945, as to the Group 3 claimants.

AWARD