Third Division
Paul Samuell, Referee
DISPUTE.-" Claim by the train dispatchers that J. N. Hyland should not have been permitted by management to displace a regularly assigned train dispatcher, and that those thereby displaced be permitted to return to their former positions and paid for any and all monetary loss suffered by them."
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The Carrier and the employees involved in this dispute are respectively carrier and employees within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The opinion of Paul Sumuell, Referee, is attached hereto and made a part of this award. (See Appendix "A.")
The parties to said dispute were given due notice of hearing thereon. Hearing was had on March 13, 1935, and later the Division was unable to agree upon an award on the merits of the case because of a deadlock. Paul Samuell was selected as Referee to sit with the Division and make an award.
Article V-(h) of the Train Dispatchers' Agreement reads:"A train dispatcher may exercise displacement rights under the following conditions, which must be done within ten (10) days unless prevented by sickness or leave of absence, in which event be must do so within ten (10) days after he returns:
"(3) When there is a material change in working conditions or more than one hour in the starting or ending time of his position."
On or about August 1, 1932, J. N. Hyland informed Superintendent \1ecormick that he desired to give up his position as Chief Dispatcher by exchanging positions with his brother, then working as second-trick dispatcher, and who was willing to make the change. Thereafter, J. N. Hyland went on a vacation. W. H. Hyland filled the position as Chief Dispatcher for one day, after which 13. A. Peters, a trohimaster, with no rights in the train dispatcher's class, was made Chief Dispatcher. Upon his return from vacation, J. N. Hyland was notified that he could exercise his dispatcher's seniority on a trick dispatcher's position, which he did by displacing F. A. Retalliek on first trick.
The Referee is of the opinion, in which a majority of the Third Division colours, that the evidence before the Third Division does not sustain the claim that Rule V-(h) of the Train Dispatchers' Agreement was violated.
Has this Adjustment Board jurisdiction of disputes between employer and employee under the following general statement of facts?
While the Railway Labor Act of 19213 was in effect, four disputes involving seniority, violation, or other interpretation of rules or contracts arose between the employer and employee. These disputes were duly commenced in accordance with the practice and the law then in effect; that is to say, they were submitted in writing to or taken up in conference with the proper officers of the Division, and falling of agreement were carried to tile System Board of Adjustment, and after failing there transferred to the Board of Mediation, where conciliation was attempted, but again failed. Whereupon arbitration was offered by the Board of Mediation, but carrier declined to arbitrate. The Board of Mediation then advised parties that all practical rellndies provided In the 1926 Railway Labor Act had been exhausted in an effort to adjust the "differences in mediation" without effecting a settlement, and therefore the mediation service of said Board hall been terminated under the provisions of the Railway Labor Act.
All these proceedings took place prior to the approval of the amended Railway Labor Act on June 21, 1934. The employees, through their representatives, claim that from time to time they insisted before carrier officials that these disputes be adjusted. However, nothing official or of record seems to have transpired after the Board of Mediation had written the letter to the parties as above Indicated.
The carrier maintains that under such circulnstallces a dispute which arose under the Act of 1926, constituted a case under that law, was tried to a conclusion under the provisions of that law, exhausted all remedies and machinery provided by that law, and was ended tender that law, and is not now within the jurisdiction of the National Board of Adjustment, or of any division thereof, under the new Railway Labor Act of 7934.
The employees maintain that this Ad,justlflent Board has jurisdiction by virtue of Section 3 (3) of the Railway Labor Act of 1934, and th:!t this Board should take jurisdiction and dispose of the ointroversy in accordance with the facts contained in the record.
In support of its position the carrier contends that all legal remedies, as provides] by the Act of 7926, have been exhausted; that the cases are at an end; that while the cases are "unadjusted ", they are no longer lending.
Having reviewed the history of the Raihvay Labor Legislation in Case TD-38, it will be unnecessary to repeat. Suffice to say, tile law has for its purpose, among other things, the avoidance of interrupted commerce and the prompt and orderly settlement of all disputes covering rates of pay, rules, and working conditions. While it Is conceded that the purpose is laudable, the dislunants are unable to agree as to the extent or limitation of the purposes exprosso,i ill the present Act.
Section 3 (i) of tile present 7934 Act provides ill part as follows:"The disputes between an employee " " " and a carrier · · ' growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, includiwg cases pending and unadjusted on the date o/ the approval of tlli.e Act, shall be handled in the usual manner ", etc.
The carrier contends that the words " including cases pending and tmadjusted " are clear and unambiguous. Standing alone, this might be true, but such words must be construed in keeping with the general purposes of the Apt. Such technical construction should not be indulged as to do violenoc to the express general purpose of the Act. In the citation of the earlier in Docket TD 38,
being the case of Peck v. Geoness, 7 Howard 812-823, appears language which follows
The reasoning contained in the opinion rendered in TD-38 with reference to the word "grievance" applies here as it does there.
The words "including cases pending and unadjusted " should be construed in connection with the intention of the Act. They have significant relationship to the words which follow: "on the date of the approval of this Act" These last-quoted words undoubtedly refer to cases or disputes which arose under the Act of 1928. Therefore, it becomes timely to analyze briefly the Railway Labor Act of 1928. Some of the expressed purposes were "to settle all disputes" (Sec. 2, first) ; that all disputes "shall be considered, and, )f possible, decided with all expedition )n conference between represntatives designated and authorized so to confer, respectively, by carriers and the employees thereof interested in the dispute" (See. 2, second); "that * * * it shall be the duty of the designated representative of such carrier and employees, within ten days after the receipt of a notice of a desire * * " to confer in respect to such dispute" at a certain time and place (See Sec. 2, Par. 4) ; that Boards of Adjustment shall be created by agreement between the carrier and the employee and which agreement shall provide that disputes between any employee * * * and a carrier * * * growing out of grievances or out of the interpretation * * * of agreements * * * 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 )n this manner, that the disputes shall be referred to the designated Adjustment Board by the parties or by either party, with a fall state of facts, etc.; that a decision of such Adjustment Board shall be final (Sec. 3); that the functions of the Board of Mediation shall be invoked in case the Adjustment Board cannot agree, and in case of the inability of the Board of Mediation to bring about conciliation through mediation, then the Board shall attempt to induce the disputing parties to agree to arbitrate (See Sec. 6, a, b, and c) ; but the agreement to arbitrate is optional for either party and the failure or refusal to submit to arbitration shall constitute no violation M any legal obligation. Thus, we find a most peculiar situation in the event that arbitration is rejected by either party. No decision being reached along any of the stages of adjustment, the dispute thus staid in "mid-air", so to speak, and undecided. It was not only unadjusted, it was likewise stalled. It is true that the Act did not direct the dispute to travel elsewhere. It is equally true that under those circumstances no decision could be reached, although ehch disputant was entitled to a decision.
,The Briefs in these cases indicate that there are a large number of cases staled, undecided, or "pending" according to the employees' interpretation of that word. When the amendment of June 21, 16%34, was written it was logical that Congress should attempt to correct this anomaly by creating legal machinery whereby this large number _f accumulated and undecided cases might be promptly disposed of.
In the 1934 Act we find in Section 3 (i) that disputes between employer and employee growing out of agreements as to working conditions, rates of pay, etc., including cases pending and anadjnded or, the (Late of afipmval of the dot shall be handled according to the machinery therein set forth. It is self-evident, therefore, that the part of the Act above quoted contemplated that some disputes which had reached the dignity of a "case" should be disposed of by the Adjustment Board. The underscored words could not refer to a "case" before the Board of Mediation, for the reason that under Section 4 it is provided "all cases referred to the Board of Mediation and unsettled on the date of the approval of this Act shall be handled to a conclusion by the Mediation Board." The Mediation Board shall take over all cases referred to the Board of Mediation which remain unsettled, while the Adjustment Board shall take over and settle those cases pending and unadjusted on the date of the approval of the Act.
The important question, then, to be decided is, what do the words "cases" and "pending" mean? In my opinion "cases" tire those disputes which have ripened into cases by passing through the various legal steps in an attempt to reach an adjustment as provided by law under the 1928 Act. The carrier interprets the word "pending" to mean "hanging on" or "to be suspended." There are other interpretations of this word. I find from my College Standard Dictionary that it also has the meaning of " to be awaited, adjusted, or settled ", or "undetermined"; "incomplete", "remaining nnfinshed or undecided." The cases at bar were originally disputes which were first presented in conference to the properly authorized and designated officials of the Railroad System, and failing there to obtain an adjustment, they were then referred to the System Adjustment Board, which deadlocked, and from there to the Board of 1Alediation, and there unable to obtain a decision. It Is true that the eases at bar had passed through all the processes provided by the 1928 Act, but it is equally true that these eases remain unadjusted and undecided, and if the words "undecided" and "pending" are synonymous, then these cases remain "pending and unadjusted." It is self-evident that the Bill does not shine with clarity of language. We must again resort to what we conceive to be the meaning and intention of the Legislature. One of the principal purposes of law is to promptly and expeditiously settle disputes and cases. A dispute and/or case is not adjusted by permitting it to remain unadjusted. To hold that the disputes in the vases at bar have been settled by permitting them to remain undecided or pending is incongruous, inconsistent, and irrational.
It is to be noted that in the Committee hearings on the Bill the carrier pre sented an amendment as follows: "Provided, that no Board created under the provisions of this Section shall consider a grievance of any character the cause of which arose more than two dears prior to the effective date of this Act" By striking the proposed amendment, Congress apparently intended that there should be no statute of limitations as respects those disputes which have ripened into cases and which cases remain pending and unadjusted.
To hold that the cases at bar should not be considered by this Board on the theory that they have bad their day in Court although they remain undecided and unadjusted, renders vacuous the words " pending and unadjusted", or at least places upon them an unreasonable or irrational construction. In my opinion the carrier's contention that this Board is without jurisdiction is untenable, and I, therefore, hold that these cases should be taken by this Adjustment Board and decided upon their respective records.