THIRD DIVISION
Dudley E. Whiting, Referee
STATEMENT OF CLAIM: Claim of the Local Committee (BRT) for Dining Car Stewards for the payment of one hour and fifty minutes each round trip, Washington to Hamlet and return, Trains 7-8, as follows:
EMPLOYES' STATEMENT OF FACTS: On April 21, 1949, as a result of change in Dining Car Schedules to the effect that commencing April 24, 1949, through dining car service would be discontinued on Train 7-8. and the diners which had previously run from Washington to Miami would be cut out of Train 7 at Hamlet, southbound, and cut into Train 8 at Hamlet, northbound, protest was made to General Superintendent of Dining Cars, Mr. C. G. Douglass, by Local Chairman E. S. Burlingame, to the number of hours called for on the schedule, in that tine was started northbound (#8) fifteen minutes after the train was scheduled to leave; and cut at night southbound (.#7) at ten P. M., one hour and twenty minutes before the train was scheduled to arrive at cut-out point; copy of protest by the Local Chairman to the Superintendent of Dining Cars is here quoted in the record:
accommodations as they were satisfied with the sleeping accommodations provided on the dining car. However, as indicated in letter of December 10, 1951 from General Superintendent of Dining Cars to the Local Chairman (quoted in Carrier's Statement of Facts), such accommodations would be made available provided the affected stewards wanted them.
For the above reasons the Carrier respectfully submits that the alleged claim in the instant case is entirely without merit and should be denied.
The Carrier affirmatively states that all data contained herein has been presented to the employe representatives.
OPINION OF BOARD: It does not appear to us that a cot to be set up in the diner can be considered as available sleeping accommodations within the purview of Article 2, Section 1 and Article 2, Section 8 (c) while the diner is being operated as part of a passenger train. Consequently the claim must be sustained.
FINDINGS: The Third Division of the Adjustment Board, 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 the Railway Labor Act, as approved June 21, 1934; .
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
Article 2, Sections 1 and 8(c), upon which the instant Award is based, refer unqualifiedly to providing "sleeping accommodations" aboard trains or in cars detached from trains. Accordingly, this Award is based upon the false notion that a cot is not a sleeping accommodation and it writes into the provisions, supra, an exception not now contained therein. 7043-11 36!
If it had been intended to exclude "cots" from "sleeping accommodations" within the purview of Article 2, Sections 1 and 8(c), it would have been a very simple matter for the parties to have so provided. The omission of any and all exceptions from these provisions should have been accepted as an indication that the parties intended that there be none. It is well settled that we can only interpret the contract as it is and treat that as reserved to the carrier which is not granted to employes by agreement (Award 2491). As we said in Award 6031, with this same Referee participating, this Board cannot "write new rules into the agreement".
The Carrier cited a long standing practice which is not inconsistent with the requirements of the rules. That practice should have been accepted as indicative of a practical construction of Article 2, Sections 1 and 8(c), by the parties themselves.