The opinion of the court was delivered by: MEANEY
The United States of America has brought suit, pursuant to the provisions of the Hours of Service Act, 45 U.S.C.A. § 61 et seq., against the Central Railroad of New Jersey, a common carrier engaged in interstate commerce.
Hour violations of the Act are alleged in the complaint, and judgment in the sum of $ 2,000 is asked, $ 500 for each violation.
The facts of the case are not in dispute, and the following is an agreed statement of facts:
2. At Jersey City, N.J., defendant maintains a continuously operated train-order office, known as Tower 'A', the assigned hours being, First Trick, 6:00 a.m. to 2:00 p.m.; Second Trick 2:00 p.m. to 10:00 p.m.; Third Trick, 10:00 p.m. to 6:00 a.m. During May and July, 1953, Israel Spewak was assigned the first trick, F. Hann the second trick, and G. M. Waterhouse the third trick. On May 19 and July 14, 1953, Second Trick Operator F. Hann was instructed to and did work as Train Dispatcher at Jersey City. The three tricks were then divided between First Trick Operator Israel Spewak and Third Trick Operator G. M. Waterhouse. Operator Spewak was required and permitted to be and remain on duty on May 19 and July 14 From 6:00 a.m. to 6:00 p.m., while Operator Waterhouse was required and permitted to be and remain on duty from 6:00 p.m. on those dates until 6:00 a.m. on the following mornings, making the total time on duty for each employee in each instance 12 hours in the twenty-four-hour period.
3. The two employees named in paragraph 2 hereof, namely, Israel Spewak and G. M. Waterhouse, were employed as Assistant Train Directors, and during the times mentioned in paragraph 2, they transmitted, received and delivered by means of the telegraph or telephone, orders pertaining to or affecting the movement of trains engaged in the transportation of interstate commerce.
4. On the dates mentioned herein, defendant had only two employees who were qualified as Train Directors at Tower A, Jersey City, New Jersey, in addition to those Train Directors regularly on duty in the said Tower A. One was a regularly assigned leverman in Tower A -- second trick, who on the dates mentioned was off duty on a regular rest day; the other was a regularly assigned cycle-relief leverman, who on the dates mentioned was working the second trick at Tower A as a leverman in place of the regularly assigned leverman on rest. Both of these men, although qualified as Train Directors in the said Tower A and available to work on the dates mentioned herein as Train Directors in the Tower A, could not be used as Train Directors in the said Tower A because of a contract agreement between the defendant carrier and the organization authorized and certified to represent this class of employee. By reason of complying with the terms of the said agreement, Operators Spewak and Waterhouse worked 12 hours each in order to cover the existing vacancies.
The pertinent provisions of the law affecting the present situation are sections 62 and 63 of Title 45 U.S.C.A.
Section 62 reads as follows:
'It shall be unlawful for any common carrier, its officers, or agents, subject to sections 61-64 of this title to require or permit any employees subject to said sections to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: Provided, That no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four-hour period on not exceeding three days in any week: Provided further, The Interstate Commerce Commission may after full hearing in a particular case and for good cause shown extend the period within which a common carrier shall comply with the provisions of this proviso as to such case. Mar. 4, 1907, c. 2939, 2, 34 Stat. 1416.'
Section 63 concerns itself with the penalties for infraction of the law and procedures to be followed for recovery of penalties.
The Government alleges that under the agreed state of facts the defendant has rendered itself liable for violation of section 62, above cited. The Railroad in its defense sets forth the agreement between itself and the organization authorized and certified to represent the class of employees to which the operators mentioned in the complaint belong. That agreement contained the following arrangement for priorities in employment of operators:
1. Use a qualified regular extra or qualified extra employee to fill the position if one is available.
2. If the vacancy is on a position on which the regularly assigned employee is on rest day, he ...