carrier and the employee involved; that under said Section the Adjustment Board has jurisdiction only of disputes arising out of violation, misinterpretation, or misapplication of agreements between the carrier and employee concerning the rates of pay, rules, or working conditions; that the disputed question or grievance before the Board does not grow out of the interpretation or application of the agremnent concerning the rates of pay, rules, or working conditions, and, therefore, the Adjustment Board is without jurisdiction; that the question should be submitted to the Mediation Board as provided by Seetion 5 (a) of said Act.

POSITION OF EMPLOYEE

It is contended by the representatives of the employee that the question involved is such a grievance as falls within Section 3 (f), and that this Ad-

justment Board should, therefore, entertain jurisdiction and decide the disputed matter on the question of fact us made by the record.

FEDERAL STATUTES INVOLVED

Two Sections of the railway Labor Act of June 21, 1934, appear to be involved. Ssection 3 (i), which defines the jurisdiction of the Adjustment Board, provides as follows:

"(i) The disputes between an employee or group of employees and a corner or carriers growing out of grievances or out of the rules or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of tile facts and all supporting data bearing upon the disputes."

Section 5 (a) (b) defines tile jurisdiction of the Mediation Board as follows: "(a) A dispute concerning changes in rates of pay, rules, or working conditions not adjusted by the parties in conference.

"(b) Any other dispute not referable to the National Adjustment Board and not adjusted in conference between the parties or where conferences are refused."

A careful reading of these Sections by one unfamiliar with the Railway Labor Act with its history and ramifications leaves one's mind in a quandary as to whether the jurisdiction of the two Boards is separate, distinct, concurrent, or overlapping. In the very able Briefs and exhaustive Arguments submitted in this case it is not contended by either side that the jurisdictions are concurrent or overlapping, and, therefore, we are constrained to give consideration to the theory that the Boards have separate and distinct jurisdictions, and the question must be decided as to which Board has jurisdiction of the question involved. Much reference has been made by both parties to testimony introduced at the hearings before the Committee on Interstate Commerce in the United States Senate and the House of Representatives as well as two annual reports of Walker D. Hines, Director General of Railroads, to the President of the United States in tile years of 1919 and 1920. This has required much time and effort on the part of tile Neutral Referee. It appears that the two chief proponents of the Bill before the Interstate Commerce Committee were tile Honorable Joseph B. Eastman, Federal Coordinator of Transportation under the Emergency Transportation Act, and Honorable George M. Garrison, President of the Brotherbood of, Railway and Steamship Clerics, Freight Handlers, Express and Station Employees who spoke at length in support of the Bill.

It is indeed interesting as well as enlightening to follow the history of social legislation as it concerns Railroad employment beginning with the Erdman Act in 1898, later superseded by the Newlands Act in 1913, which was followed by the Federal Control of Railways beginning in December of 1977, which created an Adjustment Board in the Division of Labor in 1918, and the return of Railroads to private control, tile adoption of the Esch-Cllinmings Act in 1920, creating the Railroad Labor Act of 19=6, which was amended on June 21, 1934.

Gradually but persistently has Congress advanced toward the goal of uninterrupted commerce, and the right of collective bargaining, and the prompt and orderly settlement of disputes between the carrier and employee concerning rates of pay, rules, working conditions, grievances or disputes growing out of the

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interpretation or application of agreements covering rates of pay, rules, or working conditions betwee nthe carrier and employee (Section 2).

While it is not within the province of this opinion to comment upon the policy, the merits or demerits of the enactments of Congress, yet I cannot refrain from observing the apparent lack of interest displayed by members of the Committee in both the House and Senate in the consideration of the Bill. Apparently it was assumed that the bill would be reported favorably and pas, with the result that the criticisms were few, and many refinements were omitted. The authors of the Bill would doubtless have been added greatly had the Bill been criticised severely during Committee hearing. Be that as it may, Bill H. R. 7650 became the law of the Federal Government, and we must deal with it in its present forms and as written open the Statute books.

To my mind there is ambiguity in Sections 3 (i) and 5 (a) and (b). If the word "grievances" in Section 3 (i.) is to be interpreted in its widest scope, then the words which follow, "or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions" are superfluous. A "grievance" in its widest interpretation embraces a ground of complaint, a cauve of annoyance which may be just or imaginary. Any person may claim to be aggrieved even though without foundation. An example assume that the dispatchers in the Mississippi Valley would claim the weather in July and August to be unbearable, and demand double pay for last year and a shorter future schedule. Obviously it is a grievance, as well as it dispute, which involves the change in working conditions. Section 5 (a) requires that such dispute sball be referred to the Mediation Board, yet because one of the disputants has arbitrarily called the dispute a "grievance", should the matter be referred to the Adjustment Board? I ;an of the firm conviction that it should not. Several reasons impel such a conclusion. In the first place, Section 5 (a) definitely provides that the services of the Mediation Board shall be invoked in a dispute concerning changes in working conditions when not adjusted by the parties in conference. Secondly, paragraph (b) of the same Section provides that the Mediation Board's services shall be invoked in any other dispute which is not referable to the Adjustment Board.

Every dispute must be considered as a grievance by one side or the other when tile word "grievance" is interpreted in its widest sense. Therefore, I am led to the conclusion that there are disputes or grievances which Congress intended should not be "referred" to the Adjustment Board because of the ,language used in Section 5 (b). There must be some limitation placed upon the word "grievance" by Congress. It may be asked what is that limitation, and to me it seems that the language in Section 3 (i) admits of only one construction, and that is that grievances which flow from agreements concerning * * * working conditions shall be referred to the Adjustment Board. It must be admitted that the language used in the Act is not identical with this interpretation, yet Congress has seen fit to provide that there are disputes or grievances over which the Adjustment Board shall not take jurisdiction, and somewhere in the indefinite language used in Section 3 (i) a line of demarcation must be drawn. After much study of the above Sections, and realizing the awkwardness of the language, I read with much interest the comment made by the sponsors of the Bill before the Committee. I quote the language of the Honorable Joseph B. Eastman before the House of Representatives, at page 47:

" It provides for the creation of a national adjustment board to which unadjusted 'disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions' may be referred. Plca.se note that disputes concerning changes ·in rates op pay, rules, or working conditions may not be so referred, but are to be handled, when unadjusted, through the process of mediation. The national adjustment board is to handle only the minor cases growing out of grievances or out of the interpretation or application of agreements. Provision is also made so that deadlocks will be impossible. When the regular members, who will be equally divided between the two sides, disagree, they must call in a neutral member appointed by the mediation board to decide the case."

" I also have the feeling that the rat tonal board will have a very distinct advantage, because it can establish certain precedents of general application which should furnish a guide for deciding cases locally."

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"Mr. Cooper. That is what I mean.

"hoax, it does not mean that all disputes that height arisc belaveen a carrier and the employees is gulag to go to this National Board of Adjustnuent, does it?

"Commissioner Eastman. No, sir." at page G8:

"Commissioner Eastman. Yes; and it is may understanding that the ionployees in the case of those minor grirvanees-and that is all that can be dealt urith by the adjustment boated * x ·.

"Commissioner Eastman. Mr. Cooper, do not make any anistake about this: You slave referred to wages. The whole matter of working rules and conditions is not within the jurisdietion of (his adjustment board, They have no right to dcteanaine ushat the working rules shall be. It is only the interpretation of whatever rules are agrccd upon. It is a quedhaa of interpreting them. It is minor matters of that kind, and not the questions either of wages or of working rules. Tire basic matters ale left for the processes of naediation."

I also quote several observations made by Mr. George Harrison, who likewise supported the Bill as adopted. The following testimony is taken from the Hearing of the Committee of tile House of Representatives oil 11. R.-7650, at page 80, and in the discussion of the various features ho says:

"The neat gencral question covered by the Act is that of establishing machinery to settle coiitrovervdes that gr-ou up between management and einployces aver the meaning or the allocation of the contracts that have prerioously been made. Now, as a brief explanation of the character of those disputes, they might very well concern a man's seniority, whether or no his date is the proper date; might very well concern whether or no lie has been paid the proper amount of compensation for a particular class of work performed, as the contract provides 811:111 be paid. It may very well concern the separation of an employee from the service, whether or lie he has been unjustly dismissal. It very well may concern the promotion of a man, whether he should have been accorded promotion, in accordance with his ability and his seniority in keeping with the rules of the contract; whether or no he was laid off in his seniority order; if lie had not been taken back in his seniority order,"

"So, out of all of that experience and recognizing the character of the services given to the people of this country by our industry and bow essential it is to the welfare of the country, these organizations have come to the conclusion that in respect to these nibior-gricv;ince caa'es that grow out of the interpreta,-'ion and/or application of the contracts at, eady made. that the>- call very well permit those disputes to be devilled, if they desire to progress them, to be decided, by an adjuslinent board. Should this act supply that machinery-, it provides for a tiatiolod board consisting of 18 labor representatives and 18 management reluesentalives, ;t total of 30. Those representatives are to be compensated by the parties that they are to represent."

And again, before the Senate Committee, we find lie. Eastinan culilluenting upon the Adjustment Board as follows (page 158)

"The Board would not handle major issues relative to wages, rules, and working conditions. All that it would handle would be niiaor issues relating to the interpretation of such rules as exist and to grievances of employees under tile espldislad rules."

If I correctly- read and interpret the testimony of the sponsors (and perhaps authors) of the presoiit Railway Littler Act, it was their opinion that the language supports the theory that the Adjustment Board has no jurisdiction of working rule:; and conditions, nor shall it determine what tile working rules shall be, but that it shall have only the light of interpretation of wliatcver rules are agreed upon, and that basic inatter.s are left for the proccsscs of mediation. It is indeed unfortunate that tile law as written does not cxlrees:d tile meaning and intentions as cleanly as the oral statements of there eminent gentleno-u, and while their statements are by no meaty: concluNive. they ale, nevertheless, persuasive in view of the ambiguity remained in the Railway Labor Act.

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Mr. Lubrsen's statement as quoted on the first page of this opinion, together with Chairman Duke's statement in this record: " We are well aware of the fact that there is no violation of an agreement in your disinclination to restore any of these positions ", and a study of the Schedule of Wages and General Regulations for Train Dispatchers as exists between the Train Dispatchers and the Chesapeake &, Ohio Radway Company convinces me that no interpretation of rules or agreement concerning working conditions is involved in this dispute or grievance, although I do find that the Schedule or agreement contains many provisions as to working conditions, nothing sufficiently related, however, to the question involved in this case to permit an interpretation of rules.

It is my opinion that the interpretation of the contracts or rules between the employer and employee heretofore or hereafter entered into is the jurisdictional foundation of the Adjustment Board. These questions are minor as compared with the making of working rules, establishing working conditions, or agreeing upon wages, all of which are basic matters and left to the processes of the Mediation Board.

The question of restoring two train-dispatcher positions on a given Division, ill the absence of an agreement or rule relating to an agreement or rule relating to the matter, is a question over which the Adjustment Board has no jurisdiction. While it is true that the dispute or grievance concerns only two positions, and which may be considered minor, yet the principle involved establishes a precedent which is basic and far-reaching. To recognize this dispute from a jurisdictional standpoint would, in my humble judgment, open the door to future disputes which, under the cloak of a grievance, are in truth and fact workingcondition problems which are not governnned by rules or contracts, and thus permit the Adjustment Board to supersede the functions and duties of the Mediation Board.

1, therefore, hold that this Board is without jurisdiction to consider the question and dispute raised in Case No. TD-3S.

(Signed) PAuz SAMUEra.,