DISPUTE.-"Contention by the train dispatchers that management violated the intent of Article 1V-(e) current Agreement on Rules, when, without seeking or obtaining an agreement to waive the application thereof, ordered tt train dispatcher, in addition to his regular dispatching territory, to also handle the territory of another dispatcher so as to enable the latter to be off duty on his weekly rest days, and that the train dispatchers who, under the rule, would have worked in place of the dispatcher off duty be compensated for the wage loss suffered by them by reason of the dispatching territories being doubled for relief purposes."
FINDINGS.-The Third Division of the Adjustment Board, upon tile whole record and all the, evidence, finds that:
The Carrier and the emploees involved in this dispute are, respectively, carrier and employees within the meaning of tile Railway Labor Act, as ap. proved June 21, 1934.
Thus Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The opinion of Paul Samuell, 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 14, 1935, atal later the Division was unable to agree upon an award on the merits of the case because of a deadlock. Paul Samuel] was selected as Referee to sit with the Division and make an award.
This is an ex pane submission and the employees' "Statement of Facts" reads:
"Aavzera IV-(e) of the current Agreement reads: ' The doubling of territory for relief purposes shall not be permitted:
Mondays had been, and was on IJecember 26, 1932, and on January 2, 1933, the regularly scheduled weekly rest day for the, train dispatcher assigned to dispatch trains on the territory commonly known as territory (C), Rochester Division, still on such rest days that dispatcher was, by schedule, relieved b3 :t rest day relief dir:pateber in accordance with the rules (Article iV-a) reading:
"'Each regularly assigned train dispatcher, " * ° will be allowed and required to take one day off per week an a rest day ' ' °.'
"Instead of permitting a relief dispatcher to work dispatching territory (C) on the days above shown, amt without seeking or obtaining an agreement with the representatives of the organization to waive the application of Article IV (e), management instructed the trick dispatcher handling the other dispatching territory to also handle territory (C) on those days, because of which the dispatcher who otherwise would have relieved the dispatcher on territory (C) suffered a monetary loss."
The carrier makes no "Statement of Facts" but sets up the contention that Monday, December 26, 1932, and Monday, January 2, 1933, being observed its holidays the business was light, and the territory being doubled on the pre. ceding Sundays, as usual, the Sunday aaxifoneeat was not ap7lt on these Mondays, and therefore there was no violation of Rule IV-(e).
The Referee is of tile opinion, in which a majority of the Third Division (·otlcurs, that the dispatching territory was doubled by the carrier on the dates in rluestion in vhllation of Rule 1V-(e) of the Train Dispatchers' Agreement.
Has this Adjustment Board jurisdiction of disputes between employer and employee under the following general statement of facts?
While the Railway Labor Act of 19'36 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 tile law then in effect; that is to say, they were ~ubluitted in writing to or taken up in conference with the proper officers of the Division, and failing 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 remedies provided in the 1926 Railway Labor Act laid been exhausted is an effort to adjust the "diffferences in mediation" without effecting a settlement, and, therefore, the mediation service of said Board had been terminated under the provisions of tile Railway Labor Act.
All these proceedings took place prior to the approval of tile 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 tbese disputes be adjusted. However, nothing official or of record seems to have transpired after the Board of Mediation had written the letter to tile parties an above indicated.
The carrier maintains that under anvil circumstances a dispute which arose under the Act of 1926 constituted a case under that law, was tried to a conclusion under tile provisions of that law, exhausted all remedies and machinery provided by that law, and was ended under that law, alai is not now within the jurisdiction of the National Board of adjustment, or of any division thereof, tender the new Railway Labor Act of 1934.
The employees maintain that this AQjusttllent Board bas jurisdiction by virtne of Section 3 (i) of the Railway Labor Act of 1934, and that this Board should take jurisdiction and dispose of the controversy in accordance with the facts contained in the record.
1n rapport of its position the carrier cuntcleds that all legal remedies, as provided by the Act of 1928, have been exhausted; that the cases are at an call; that while the cases are "unadjusted ". they are no loner pending.
Having reviewed the history of the Railway Labor Legislation lit Case TD-38, it will be unnecessary to repeat. Suffice to .say, the law has far 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 disputants are unable to agree as to the extent or Radiation of the purposes exprc.<ed ill tile present Act.
Section 3 (i) of the present 1934 Act provides lit part as followsThe disputes between an employee * * * and a earlier * * " growing out of grievances or out of the interpretation or application old agreements concerning rates of pay, rules, or working conditions, including cases pending and unadja.ricd on the date o7 the approval of this Act, shall be handled in the usual manner, ere.
The carrier contends that the words "including cases peudiug and utladjnsteQ" are clear and unambiguous. Standing alone this might be true, but such words must be construed in keeping with the general purposes of the Act. Such technical construction should not be indulged as to do violence to the express general purpose of the Act. In the citation of the carrier ill Docket TD-38, being the case of Peck; v. OermeNy.s, 7 Iloward, 612-623, appears language wbich follows:
But it is among the elementary principles with regard ill the construelion of statutes that every section, provbhm, and clause or a statute shall be expounded by a reference ill every other; and, if possible, every clause and provision shall avail and lave the effect contemplated by the Legislature. One portion of ill(, Statute should not be construed to annul or destroy what has been clearly granted by another. The most general and absolute terms of one section may be qualified laid limited by conditions and exceptions contained in another, so that they all may stand together.
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 atoll 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 Alt:' These lastquoted words undoubtedly refer to curses or (lisprttes which arose under the Act of 1926. Therefore it becomes timely to analyze briefly the Railway Labor Act of 1926. Some of the expressed purposes were "to settle all disputes" (Sec. 2, first) ; that all disputes "shall be considered, sit(], if possible, decided with kill expedition in conferpttm between representatives designated and authorized so to confer, respectively, by carriers and the employees thereof interested ill the dispute" (Sec. 2, second) ; "that * * * it shall be tile 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 " :,t a certain time and place (See Sec. 2. Par. 4) ; that Boards of Adjustment shall he created by agreement between the carrier and the employee laid 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 in Olis manner, that the disputes shall be referred to the designated Adjltatlncltt Board by the parties or by either party, with a full statement of facts, etc.; that :t decision of such Adjustment Board shall be final (Sec. 3) ; that the functions of theB oard of Mediation shall be invoked In case the Adjustment Board cannot agree. alnl in case of tile inabllity of the Board of Mediation ill bring about conciliation through medhrtion, then the Board shall attempt to induce the disputing parties to agree to arbitrate (See Sec. 5, a, b, and c); but the agreement to arbitrate is optional for either party and the failure or refusal to submit to ulbitration shall conrtitute no violation of 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 stag's of adjustment, the dispute thus stood in "mid air", so to speak, and undecided. It was not only inladjusted, it was likewise stalled. It is true that the ace dill not direct tile dispute to travel
elsewhere. It is equally true that under those eircuiustaltces no decision could be reached, although each disputant wa.< entitled to ii decision.
The Briefs in these cases indicate that there are a large number of cases stalled, undecided or "pending", according to the employee; interpretaltioll of that word. When the amendment of June 'G1, 1934, was written, it was lofiicat that Congress should attempt to correct this anomaly by creating legal machinery whereby this large number of accumulated and undecided cases might be promptly dispersed of.
In the 193-1 Act we find fu Section 3 (1) that disputes between employer and. elaployee growing out of agreements its to working conditions, rates of pay, vie., inclvdting oases pending and unadjusted on tile date of approval of tile Act, shall be handled according to the inncldnery therein set forth. It is selfevident, therefore, that tile part of the Act above quoted contemplated that .some disputes which laid reached the dignity of a "case" should be disposed of. by the Adjustment Board. The italicized words could not refer to a "case" before the Board of Mediation for tile reason that under Section 4 it is provided "all cases referred to the Boarii of Mediation and unsettled on the date of the approval of this Act sliall 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 imporbuit question then to be decided is, what do the words ° cases " and "pending" mean? In my opinion, "cases" are those disputes which liare ripened into cases by passing through the various legal steps in an attempt to reach an adjustment as provided by law under the 1926 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 unfinished or undecided." The eases 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 Mediation, amt there unable to obtain a decision. It is true that the cases at bar hall passed through all the processes provided by tile 19211 Act, but it is equally time that these cases remain unadjusted and undecided, and if the words "undecided" :aid "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 cases at bar have been settled by permitting them to remain undecided or pending is incongruous, inconsistent, amt irrational.
It is to be noted that fn till, Committee hearings oil the Bill tile carrier presented 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 years 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 had 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 amt decided upon their respective records.