The above captioned parties to said dispute were given due notice of hearing thereon.

Carrier has raised the issue of lack of jurisdiction of the Division for non-joinder of interested parties who are or may be involved herein. It asserts that the carmen who now claim this work are not entitled to it; that the work has always been done by stores department employes (clerks) and that if the work should be decided to be improper for the clerks under their agreement that the bridge and building department employes (MofW) are entitled thereto in advance of the claimant carmen.

The consensus of thought on this third party notice question is to the effect that giving notice to a craft whose disputes are under the jurisdiction of another division, is likely to be ignored because our division cannot interpret their agreement. Regardless of this likelihood, U. S. Circuit courts of appeal have held that notice should be sent.

For rulings requiring notice, see:

1. MKTRR vs. Clerks 188 Fed(2nd) 302

2. Kirby vs. Pennsylvania 188 Fed(2nd) 793

3. Hunter vs. ATSF 188 Fed (2nd) 294

Also as 171 Fed (2nd) 594

4. Estes vs. Union Terminal 89 Fed(2nd) 768

5. Nord vs. Griffin 86 Fed(2nd) 481

6. Allain vs. Tummon 212 Fed (2nd) 32

7. EJ&E vs. Burley 325 U. S. 711

also 327 U. S. 661

8. ORC vs. Pitney 326 U. S. 561

9. Whitehouse vs. Illinois Central on 212 Fed(2nd) 22

appeal 349 U. S. 845

10. Telegraphers vs. NOTM 229 Fed(2nd)59

The Whitehouse case, supra, is the latest expression by .the Supreme Court touching on this question. In that case a U. S. District Court granted a temporary injunction to ,the petitioning railroad holding up further proceedings by the Third Division unless notice was given to the third party. This decision was taken up to the U. S. Circuit Court of Appeals where, with one justice dissenting, the decision was affirmed. Then the case was appealed to the U. S. Supreme Court which reversed the Circuit Court of Appeals and said in a divided opinion, in part as follows:

"We have been urged to resolve the present dispute regarding the requirement of notice to persons not formal parties to a submission * * *. This remains a perplexing problem despite the substantial agreement among courts of appeal which have considered the question in holding that notice is required. * * * The wording of * * * (Sect) 3 First (j) does not give a clear answer, * * *, it is certainly not obvious that * * * notice need be given beyond the parties to the submission. * * * Were notice given to clerks * * * they would be within their legal rights to refuse to participate in the present proceeding * * *. There is no reason for holding, in the abstract, that any possible award would be rendered void by failure to give notice."

Then after all this discussion of the basic question the court concluded the appeal deciding there was, "inadequate basis for intervention (by the courts) whether by mandamus or injunction".

This Board can only observe that the court's intervention of remedial legal rights has operated to leave the basic question unanswered, and also leaves a question as to the opinions of the dissenters which were not expresed.

With full knowledge that the fundamentals of due process, notice and an opportunity to be heard, the paramount character of individual rights, and the sanctity of contracts, are all mingled in this issue, and that the Supreme Court has not definitely decided the question posed by the conflict built into the Railway Labor Act by its framers, we hold on this occasion that notice shall be sent to the third party involved, specified by the carrier.

AWARD