(20) There does not exist nor has there existed any agreement or understanding, either written or implied, that the individuals engaged in Utah Copper ore haulage service are within the purview of the agreement the carrier has with its conductors, brakemen, engine foremen and switchmen. On the contrary, the officials of the carrier have consistently asserted their lack of authority or jurisdiction to negotiate or contract on behalf of the Utah Copper Company with Utah Copper Company employes. This policy has always been maintained and is evidenced by various correspondence reproduced below:

At the outset of negotiations for the present agreement the Railway has with its conductors, brakemen, engine foremen and switchmen, the following letter, dated March 25, 1938, was received:

"Mr. F. O. Haymond, General Manager,

Bingham & Garfield Railway,

Magna, Utah.

Dear Sir:

I have been assigned by the Chief Executive of our Organization to assist the General Committee of the Order of Railway Conductors in negotiating schedule of rates of pay, rules and working conditions for Conductors, Brakemen and Yardmen on your Railroad.

I understand that you have been furnished with notice of the desire of these employes through the presentation of a petition. I further understand through the notice posted on your bulletin board that your carrier has acknowledged the authority of the Railway Labor Act and formal request for conference is hereby made under the provisions of the said act; therefore an early date for conference will be appreciated.

Please address me Belvedere Apartment Hotel and General Chairman at residence address.

Reply to the above was made under date of April 4, 1938, reading as follows:

son.

RE: CONDUCTORS, BRAKEMEN AND YARDMEN

I am in receipt of your letter upon the above subject, dated March 25, 1938, which letter was also signed by Mr. B. H. RichardSometime ago I received a petition signed by a majority of the conductors, brakemen, and yardmen of the Bingham & Garfield Railway Company, designating the Order of Railway Conductors their representative for the purpose of collective bargaining “on all questions pertaining to rates of pay, rules and working conditions *** as provided under the Railway Labor Act." From your letter of March 25th, last, I conclude that you have been designated by the Order of Railway Conductors on its behalf as such representa

tive personally to enter upon the negotiation with the Bingham & Garfield Railway Company of a "schedule of rates of pay, rules and working conditions for conductors, brakemen and yardmen" employed by the Railway Company upon its railroad. I will be pleased to grant you a reference upon that subject, Friday the 8th day of April, 1938, at 9:30 o'clock, A. M., at my office at Magna, Utah.

You will understand, I am sure, that employes of the Utah Copper Company are not within my jurisdiction and that our conference must, of necessity, relate to Bingham & Garfield Railway Company men and business exclusively. I make this suggestion because I note that the petition above referred to carries the signatures of a number who are not Bingham & Garfield Railway Company employes and over whose rate of pay, rules or working condititons I have no authority. I am not an official of the Utah Copper Company.

Very truly yours,

(Signed) F. O. Haymond,
General Manager."

Throughout all negotiations for this agreement it was particularly emphasized that it concerned only the carrier and the carrier's employes; in na form or manner was it to include or apply to Utah Copper Company employes in ore haulage service. With this understanding, agreed to by all concerned, the agreement was signed June 3, 1938, effective June 1, 1938.

With the passage and application of the Fair Labor Standards Act the following letter, dated October 29, 1938, was received:

"Mr. F. O. Haymond, General Manager,

B. & G. Ry.,

Magna, Utah.

Dear Sir:

With regard to our conversation concerning the 44 hour week for men in ore delivery service:

I have been instructed by the President of the O. R. C. to protest this action of the Company, referring you to Sect. 13-B of the Fair Labor Standards Act, known as the Wages & Hour Law, as the basis of our protest.

We wish to inform you that above all else, we must insist on the management living up to the provisions of our working agreement.

Very truly yours,

(Signed) G. T. Colvin,

Acting General Chairman,
O. R. C. Division No. 395."

Here again the carrier reiterated its lack of jurisdiction or authority in such matters by replying as follows under date of October 22, 1938:

"Mr. G. T. Colvin,

Acting General Chairman,

O. R. C. Division No. 395,
Magna, Utah.

Dear Sir:

I am in receipt of your letter of the 20th inst., with relation to the applicability to the Utah Copper Company Ore Delivery operation of the Fair Labor Standards Act. I assume that the Utah Copper Company is not subject to the provisions of Part I of the Interstate Commerce Act and that, therefore, its employes are not ex