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 will be used if available.
3. If none of the above employees is available, then on positions where three men are assigned around the clock, each having an 8-hour tour, the two men having an assigned tour immediately before or immediately after the vacant tour, will be given the option of filling the vacancy by splitting the 8-hour tour, working 4 hours each in addition to their assigned tour of 8 hours.
From the statement of facts it would appear that there was no one available under the first two priorities. The Railroad then carried out the terms of the third paragraph of the agreement.
It seems patent that the contract entered into between the Railroad and the representatives of the employees, in so far as the third of the methods of enforcing priorities is concerned, is violative of the express provision of the Hours of Service Act. This law was enacted by Congress on the grounds of public policy, and was designed to promote safety of the employees and of the traveling public. The terms of the Act are unequivocal and the only defenses to actions such as the instant one are the existence of an emergency as set forth in section 62, casualty, unavoidable accident, or the act of God as set forth in section 63. Nowhere is exception allowed because of contractual relations between the employer and accredited representatives of the employees.
Since neither casualty, unavoidable accident, nor an act of God can be spelled out of the situation now under consideration, there remains only the possibility of the existence of an emergency such as is contemplated by the provisions of the Act.
The terms of the contract cannot be deemed effective in the creation of an emergency, since no contract which conflicts with the law may properly be entered into.
The word 'emergency' as used in the Act means an abnormal or unusual condition beyond an employer's control, and a condition beyond his reasonable power to remove or control. United States v. Atlantic Coast Line R. Co., 4 Cir., 153 F.2d 243; United States v. New York Central R. Co., D.C., 64 F.Supp. 499; United States v. Delano, 7 Cir., 246 F. 107. The absence of Hann from his own duties was not such an emergency as could be met only by the action taken by the Railroad, as is evident from the fact that qualified employees of the employer other than Hann were available, who were not used because of the agreement between the Railroad and the operators' organization.
If, as has been pointed out by Judge Ford in the case of United States v. New York Central R. Co., supra, a state statute concerning duties of persons engaged in interstate movement of trains must yield to the Hours of Service Act, a fortiori no contract between an employer and its employees may be permitted to abrogate the Act.
The court finds the defendant liable for $ 500 penalty on each of four violations, and judgment may be entered in favor of the plaintiff and against the defendant in the sum of $ 2,000.
Let this opinion constitute findings of fact and conclusions of law.
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