Award No. 3715
Case No. 5535
2-HBL-CM261
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Upon failure of the Division to agree upon procedural steps and
upon its having deadlocked on the question of docketing this dispute,
the Labor Members invoked the services of the National Mediation
Board for appointment of a referee for the purpose of breaking the
deadlock on the docketing of the dispute and said Board appointed
Mortimer Stone as referee to sit with the Division as a member
thereof to make decision thereon.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 114, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
HARBOR BELT LINE RAILROAD
DISPUTE:
Following the usual procedure System Federation No. 114 gave notice
to the Division of intention to submit an ex parte submission involving the
following dispute between the Harbor Belt Line Railroad and the carmen
of System Federation No. 114, to wit:
1. That performance of work by Pacific Fruit Express Employes on cars in transit, permanently or temporarily, on Harbor
Belt Line Railroad premises, is work belonging to employes of the
Harbor Belt Line Railroad and who are amply covered by Agreement
between Harbor Belt Line Railroad and its Employes who are represented by System Federation No. 114, Railway Employes' Department, American Federation of Labor, and which work is now being
performed by Pacific Fruit Express employes in violation of Rules
20, 21, 39 and paragraph (b) of Rule 41 of aforementioned Agreement.
2. That Carrier improperly transferred and assigned the performance of said work to Pacific Fruit Express employes who are not
covered by any agreement on the Harbor Belt Line Railroad, and are
performing said work to the deprivation of Harbor Belt Line Railroad
Employes, as represented by System Federation No. 114.
3. That accordingly the Carrier be ordered to cease and restore
said work to Harbor Belt Line Railroad Employes in view of the
fact that Harbor Belt Line Railroad employes have a recognized
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agreement, and the employes of the Pacific Fruit Express Company
do not have such an agreement on the Harbor Belt Line Railroad
property.
Thereafter such submission was tendered to the Division and the Harbor
Belt Line Railroad, the carrier named therein, duly tendered its submission,
in which it contended:
1. That the Board is without legal authority to render an
award in the absence of proper notice to all parties involved;
2. That the dispute is not within the jurisdiction of the Board
because it was not handled in the usual manner up to an including
the Chief Operating Officer of the carrier;
3. That the dispute should be dismissed by the Board in that it
has been abandoned under time limitation and related rules of the
collective agreement; and,
4. That there has been no violation of any rule of the collective
agreement in effect between the parties.
Following receipt of said submissions and at a meeting of the Division
the following motion was made and seconded:
"Motion duly made that Case No. 5535 HBL-CM, be docketed
and set down for hearing".
Thereupon a proposed amendment to include giving notice to certain
third parties failed to carry and the original motion was put to vote and
failed to carry because of a tie vote.
It would appear that the issue of docketing is properly before the
Division, and that is the only issue on which the referee is authorized to
participate as a member thereof.
So far as appears the case was regularly referred to the appropriate
Division pursuant to the provisions of the Railway Labor Act. The docketing
of the case is not the acceptance of jurisdiction over issues presented but only
the acceptance of the submissions from which jurisdiction and other issues
may be determined. Until the case is docketed it is not before the Division
for consideration of any of the facts or issues presented in the submissions
and that is the first and necessary step before they may be considered.
AWARD
The dispute should be docketed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 29th day of March 1961.