as a whole and their etnpioyees. The parties to ibis dispute were negotiating about tile formation of such a Board from June 8, 1926, to sometime in August 1926, tile issue between them being whether to Jornt a System Board which the carrier proposed or a Regional Bnard whielt tile employees' organizations were urging. Not mail two and one half years later, in February 1029, were the entploy-ees advirrd or the failure of the naliooat conferences in regard to the formation of regional boards. Meanwhile, the carrier's proposal to form a system board had not been rvitlrdrawn and the matter of a board, and presum;tbly al.o of pending tales on the propor~ty, had remained in stntu quo.

Meanwhile (lispuue had arisen concerning the right of lhc Brulherhood of Railway and Stcamutip Chrks, the petitioners in the instant case, to represent the clerical employees of this carrier, and bargaining relations between tile Brotherhood and the carrier were broken off in July 1927. Litigation on the question of representation continued until May 1930.

On February 11, 1528, the Federal District Courl ord, red reinstatement of tile Brotherhood but the carrier carried the case up to tile Supreme Court of the United States where a decision was handed down on May 26, 1930, upholding the decision of lower Court, and finally establishing the Brotherhood as the legal representative of the clerical employees of this carrier.

In September 1029 while the question of vlerksi representation was still pending on appeal in the Federal Courts, employees representatives advised the carrier that they vvvere ready to proceed to form a system board, but no conference was helm until September 10, 1930; that is to say, about three and one hall' months after the decision of the U. S. Supreme Court finally settled the representative status of the Brotherhood of Railway Clerks.

In conferences concerning a board, dispute centered on the question whether disputes arising subsequent to May 20, 1926, the efrective date of tile Railway Labor Act (employee; contention) or only those subsequent to September 1, 1930, (carrier's contention) should be ltandlul by tile Board when created. No agreement was reached tit conference held on September 10, 1!DJO, January 13, 19.'31. uud March 9, 1931.

On March 17, 19,21, the U. S. Board of Mediation came into the picture with former Governor Colquitt its mediator, but on July 24. 1931, mediation in respect to a Clerks' System Adjustment Board failed and carrier by letter of August 29, 1931, declined to arbitrate. Thereafter, Grand President Harrison of the Brollonbood conferred with officers of the carrier in an effort to reach a compromise and the, employees' committee thought one had been reached, but it did nut culminate, and no system board was ever formed.

After discmitinuance of bargaining relations with the Brotherhood, it appears That there was an Association of Clerical Employees on the property and on August 20, 1927, the management granted the Association a wage increase of $100,000 per year, and in the process of distributing that sum rerated the various clet2eal positions.

The rule of stenographer to the. terminal trainmaster, at El Paso, the position flow in dispute, was raised froth $4.79 to 25.00 per day, and the rate of ::!onographer to the n.°ent, which rate the petitioners claim to be the rightful one for the position in dispute. was raised from $.5.19 to $5.25 per day.

On January 1, 1928, the position of torndrml trahnuaster was superseded by file position of general yardmaster, and on June 18, 1928, firs. Lillian Salem, tile claimant jn this ease, was enrolnyed as stenographer to the general yardmaster at the $5.00 rate which petitioners want advanced to $5.25 as of June 18. 1928.

'Cite case was subtnitled to the Board on September 24, 19'.35, and n statement with exhibits ions presented October 23. 19:),4

Carrier's brief with exhibits was presented October 19, 19°G, and oral hearing was had oil Felottar:v 13 and 14, 1936, after which supplementary briefs and exhibits were submitted. When it became accessary to atll in a referee, carrier requested a further hearing of the parties with the referee sitting with tile Division. which hearing vvas held of) July 8', 1936.

Certain of the exhibits, which are extensively duplicated in tile petitioners' :,fill the carrier's briefs, set forth the respective hoshions of the parties both as to earlier and later plnises of tile case, with considerable conciseness. Wherever practicable, orig;in:il qatoments arc quoted or summarized. The fethywine arc untong the more significant supporting docunaa!ts contained in tire record:

NOTE.-"P" indicates documents ill Petitioners evhibitss. "C" indicates docatnenis in Carrier's exhibits, "P~,C" indicates documents iu both exhibits.

482

C. January 9, 1925, copy of requisition and authorization for additional cleric for Terminal Trainmaster at $4.79 per day, effective January 16, 19=5.

P. December 6 19'-6, letter from M. 1V. Phillips, Division Chairman, G. II. & S. A., and P. E. whisner, Division Chairnan, Southern hacitic, to C. 12. Morrill, Supt., G. II. S S. A., and L. L. Morris, Snot., Southern Pacific, to-wit:

"Your attention is respectfully directed to lite mvisfing disparity in the rate of pity for posilioar of slenogrflIlIter to lite Tenuintd Trainmaster as compared with those of liko nature in the se·tiority district where created.

"Position No. 3 was established effeethe January 16, 1995, ors it six day assignment, lours 8 a. tit. to :, p. rTi.. at lite rate of $4.79, per day. Under rule No. 54, article 11, of the G. It. & S. A. agreement :ind rule No. 1, Article 5, of (It(, S. 1'. Ccamp;my agr<vatont, it is provi=Icd that rates of pay for new positions shall be in conformity with rates paid for sinular positions with duties of like nature in tile seniority district where created.

"It can hardly be prosurned Ihat tborc would be :m>- radical (11Serenee in the duties or reslionsibfides of the stonot:apher to the 'terminal Trvinm;:sfor and the stenographer to the Aaent, and yet Tort will find that the rale of $5.19 per clay is paid for the latter p^sition.

"It is our contention that the rate of $5.19 per (lay should also be made to apply to tits position of scenographer to the Terminal Traimuaster and that adjustment be made for all time during which the lower rate of $4.79 has been applied.

"If, in your opinion it is necessary that an investigation be held to further develop all of lit. facts in this caso, we should be pleased to have yon gent tenten name a date to suit your convenience."

"Your letter of Ieecndwr 6th, in reforetse to rate of pay for position as stenographer, Terminal Tminnraslers offioo, 197 Paso. Eee )to grounds for your contention. If anything, rate should be reduced, its stn sure that thus stenographer does not perform the work performed by the stenographer in this office who receives the same title."

"Referring to your letter of December 9th in regard to the rate of the stenographer to the terminal trainmaster:

"Our committee does not understand tile reference which you have made to your personal stenographer, inasmuch as the position is in no way involved in this dispute and, being in an entirely separate seniority district, would not admit of any comparison with the position under discusson. We take the view that the rate and duties of the stenographer to the Asst. Superintendent are no more relevant to this subject than would be those of the stenographer to the Division Accountant or the Stenographer in the Insurance Department.

"The point that this committee desires to make is that tile position of stenographer to the Terminal Trainmaster was created in violation of Rule 54, Article 11, of the Clerks' tire rates prevailing for positions of similar kind or class in the seniority district where created.

"We have only two positions in the same seniority district from which a comparison may be drawn namely, the stenographer to the Agent, which carries the rate of $5.19, and the claim department stenographer which carries the rate of $5.07.

"Oar investigation has convinced us that the rate of $4.79 which was assigned to the Stenographer to the Terminal Trainmaster could not have been based upon the assumption that lesser duties or responsibilities would be required than on either of the above named positions.

"However, if such were the case we should be pleased to have you direct our attention to those particular features of the work performed by the two higher paid positions which are not also performed by the stenographer to the Terminal Trainmaster, and which call for such an outstanding differential, as we have been unable to justify this discrimination in rates."

"Your letter of December 15th. in reference to stenographer, Terminal Trainmaster, El Paso.

483

"As this work is in no way shnilar to the duties assigned to the stcnograpfcr in Freight Agent's office, proper coulrarisoll could not be ruade, but as fho work is similar to that oi' the-Assistant Superintendent's stello;rapher, as well as the rltaster Alodlianic's, we cannot agree with you in reference to increased rate for Terminal Trainnastcr stenographcl:"

"Refferrilrg to your letter of Drcciliber 17, in regard to the rate of the Stenographer to the Teiulnial Trabirnaswv.

"It is routed that you lmvr cnwscn to go cl;t=bh) floe seniority district, ill width the position under discus·,ion eras crcuted, for a corrpurison of rates and duties, rather than draw the comparison fruln the two steuographic positions avaibrble in rhc same serbolly district, and which could readily :Mod a basis for this parallel.

"Even though the mite of the Stenographer to the Jc.fut Tel iniual Trninmaster were teased upon the rate paid to the Stenographer to the GH&SA Assfstrurt Superilitendent, it would stilt remain to be explained why the rate of tier Stenographer to the Southern Pacific Company Assistant Superintendent was not considered. This position on the Pacific Lines carries a note of $146.00 per month.

"I cannot agree to the establishment of any positions in the terminal station or yard office based entirely on rates prevailing on the Atlantic System for you are aware of the fact that call rates in the joint terminal were, lit effect, compromise rates as between those prevailing oil the Atlantic System air(] the higher rates carried on the Pacific Lines.

"No serious exception was taken by any of the parties representing the two rrualiagemenls, at the time of the conference which established the local terminal rates, as to the propriety of arriving at a medium of the higher Pacific System rates and the lower rates of the Atlantic System. We see no reason why that arrangement should be set aside in the creation of positions subsequent to the inerger, and only GH&S.1 rates considered.

"Since you insist that the two stenographic positions in the same seniority district do not afford a proper basis of, comparison I am quite ready to loepare an anaylsis of rates paid to Terminal Trainmaster's stenographers on both the Atlantic and Pacific Systems, and draw a medium between the two. However, I do not believe that it would be fair to go outside the seniority district, as for instance, into the Mechanical Department and the Superintemlent's office, for a basis of comparison while positions of idenrical nature exist on both systems in the same departments."

"Letter of December 21st, in reference to the above subject.

"As stated in previous correspondence the position at Octavpi Street does not lit any way compare with the work of the Stenographer in Freight Station, and we do not care to consider change in salaries."

P-C. December 28, 1926. Letter W. H. Harper, General Chairman, to J. G. Torian, Assistant to Vice President and General Manager, to-wit:

"The position of Stenographer to Terminal Trainnraster lit El Paso was established effective January 16, 1925, and the rate of pay fixed at $4.79 per day. Under Rule 54 of the Agreement, the rate of the position should have been ill conformity with the rates of similar positions in the same seniority di·trict. There are only two other stenographic positions in the same seniority district, stenographer to Agent at $5.19, per clay, and Claim Department stenographer at $5.07. It Is believed that Division officers will agree that tile duties of the position in question are no less exacting and carry no less responsibilities than do the $5.19 and $5.07 stenonnpllic jobs in tile same seniority district.

"It is the position of the Committee that the rate has been fixed at $4.79 per day in violation of Rule a4 of the Agreement, quit claim has been made that the rate of the position sbonld be fixed at $5.19 per day, effective as of January 16, 1925, and that proper adjustments should be made to cover underpayment at the improper rate. The claim has been handled by Division Committees with Division officers, and has been declined on the basis that the $4.79 rate is in conformity with one stenographic position in each of, live oilier seniority- districts other than the district in which the

484

position in question is located, which we hold to be hnprolacr and out of keeping with Rule No. 54. We are yet of the opinion that there is a proper basis for the claim as made, and desire to handle the matter with your office on appeal. Will ,you please rexiew the file, and advise us as to your position, rivaling a date for conference, if you do not find it agreeable to allow the claim?"

"Your letter of December 28th.

"The position of stenographer to terminal trainmaster was properly rated when put on and the present rate has been ht effect for two years. We cannot entertain grievance cases that are not presented within a reasonable period and doing so could only lead to post mortem investigations of an unsatisfactory character."

"Your letter of December 31st, above subject.

"It is a matter of fact and record that the rate of the position in question is lower than the rates paid on the only other two stenographic positions in the sarnc seniority district, anti we are yet of the opinion that there is a proper basis for the claim as made, under Rule 54 of the Agreement. If the rate is improper, the fact that the underpayment has continued for a considerable period only accentuates the cause for complaint. We would be glad to have yon reconsider the matter, and discuss the claim in conference with us."

"Your letter January 41h. There is no proper basis for claim filed in this ease and, as stated in my letter of December 31st, we cannot entertain grievances that are not presented within a reasonable period."

P-C. April 12, 1927. Harper to G. S. Wald, Vice President and General Manager, Southern Pacific Lines, Houston, Texas, to-wit:

"We have a number of unsettled cases pending which we have been unable to settle in our negotiations with Mr. Tartan's office, and we desire to present for your review and consideration, the cases listed below, all of which, from the employees' viewpoint, are of such outstanding merit as to justify consideration at your hands:

Seven Day Assignment-Houston.

Change in Rate of pay, General Foreman-San Antonio.

Rate of Pay, Stenographer to Terminal Trainmaster-El Paso. Rate of Pay, J. E. Jones-New Willard.

Overtime Rate, Caboose Supplymen-Lufkfn.

Rate of Pay, Warehouse Clerk-Corpus Christi. Rate of Pay, Warehouseman-Lining.

"We have asked for Grand Lodge assistance in the settlement of our unsettled cases now pending, and it has been suggested that it might be possible to arrive at a basis for mutually satisfactory settlements, if we could secure an audience with you for further discussion of the cases. We would, therefore, be glad to have you review the files in the above named cases, and name a date upon which you can meet the executive Committee of our System Board together with Vice President, Mr. R. P. Dee, for that purpose.

"Will you kindly advise and oblige?"

"Your letter of April 12th to Mr. Wald has been referred to me for final handling. Suggest that you call upon me, following which will arrange conference date to meet your committee."

"Following the suggestion contained in Mr. Torian's letter of April 19, 1927, General Chairman Harper called on Mr. Tartan on April 20, 1927, at which time he was advised that conference could be arranged for at some mutually agreeable date, but this conference was never held or again

485

requested and nothing further urns heard of the case until FLlrper, after permitting the ease to lie dorla:lnc fur it period of over seven year,, wrote hi., lettc:* of September 20, 1034 (this letter being included in Exhibit 2), attenquing to reasserr tlic· case Under its trighnil ctlliiou. Attention is directed to the following langiuige extracted from General Chairman Hnrper's letter of September 20, 11J34:

" ', Tile above styled case roll>Litutns a elahn Under rule 54 of the Agrceu:cnt for au ueljitsq.nie:A in the rote of p:iy mt :t stenographic job in the El Paso Yard Office 1' * *'

showhlg: concluovel>· that in aticiulding to resurrect the ,zse II:trper did out present it sin the same basis that lie has preseined it to this Board. Thr rvnlahdcr of tile corrcrp<mdcnoe found in Exhibit 2 b:Ted subsequent to September 20, 1034, iildo coufitui,; this statelllent.,

"The ::mended Itb;ilway Labor Act provides that dispute,:, 'including cases pending amt unadjusted oil 11a, tittle of approval of this Act, shall be handled in the u,ual roomer up to tuid hicluding the chief operating officer of the curler designated to handle such dispule.7, and thal such dislailes may be referred to appropriate division o1' tile National Arijustnicnt Board, if settlement is )tot effected by agreement in conference!.'

"The above styled case constitutes it claim under Mile :r4 of the Agrvec inent for nn adjustment fit the rate of pay oil a sb·nugraphic job in the Dl Paso Yard Office. The mite of the position (new when created) did not conform to tile rates paid on similar positions in the same seniority district. You declined the elahn on the bosfs that the rate in effect had been applied for two years before the claim for adjustment was flied. W-a tools the position that the elailli ivas fully- sustained by the in!(-, :in(] that the (!oinpany could not validaG· all hnprope-r rate by applying it for two years in violation of the rule. The clabn is still pending amt unadjusted. We accordingly request that yon meet our Committee in confereance to discuss the claim further and seitlr it by oicll nmin, it possible, It wit: he appreciated if you will name .t conference date for that purpose."

"This case wits originally presented by you under date of December 28, 1926, to which reply was made under date of December 31, 1926. You again wrote me under elate of January 4, 1927, and I made reply under date of January 0, 1927, and no further action was taken by you. A situation in which no action leas been taken since January 1927 cannot, under tiny course of reasoning, be considered its pending. It is therefore our position that this is not a pending case."

'7 regret to note from your letter of March 27th, your file 218.68, that you have declined the above claim us being without basis.

"It is believed that the basis, at, lack of basis, for this claim rests on tile facts as to just what duties have been performed by Clerk Brandin during the period in question. In order that these facts may be accurately developed and recorded, request is made in behalf of Mr. Brandin that lie be givers a hearing as provided in rule 27. Will you please arrange hearing and advise as to its time and place so that necessary arrangements c:,u be made for the presence of witnesses?"

"The above case was among those which we were unable to dispose of in our conference ending January 31st, 1985. It was understood at that time that a subsequent meeting would be had for the purpose of drawing a joint statement of facts preparatory to the rubmisaion of the tv.se to the National Railroad Adjustment Board.

"In our conference of tae nilith you stated that yon would not consider this as being a 'pending and unadjusted' case under the terms of the Railway Labor Act, and that you therefore. declined to join the

'LZe1-1067 UT II·IIPTIMI cu-~ III allele ain17S 0111 lou sl TUIvIO '0

ql~m pa1ICIInoo uaaq IOU 0AMI I3V 1OTIVI SBANIIP.II Palru<IIIIV JO TIOTSTAO.Id IoTU I)dI;Oq JO Sa1IIII ':;

Sa11ddu Lg opill IIIII1 sazlu°oaa.l oil ~Oolla 'nlpull.lg as 'jf;(11 `(iZ TIoaTTIq 2011,1 S.ao(l.Ir77 17OAaosqO Ilaaq loji sull LF.ainu 'b

Salndslp pons a1Dutol of popu;Usap aalAJUa all .1O To,>IIN y77IIr.Jxto Janla aql anlplilaul TUTU 01 (In aaalleTU i71aSn 0111 111 Ilall>UIUI 110017 IOU 5011 a:nl7g

'saollllILuITI JO a;11lels s~T, RID Pull AIM ,To sold;anlddd liquoumpunJ So paovlno sT asu0 -Z,

'pawed Sr.a laV aoqn·I inklllrql palIUAuv all; uolm ",Palsnfhelill puu o'nlpl~ad.. I'M s'I:AI 0s1^0 'I

spunm° ''''111mo11oj all; no 'aplul alit III 'panog all; ;o UOIplpsSI.Inf hill saluap aaI.I.1 Op -rrorlalpalan(· og 57- -'KOIJISOd 5XrRIIIIIVp

a1na alt; JO a'lln°llld TITUId at[) PITT JUoIll! olU I77TdS 0111 PalrIOC7 9TUT xarIai:p 0711 5111017 OS' ITT IluIl 'SIIJUJIMIS a17palosuuo.1 Jo 1lo111sod Ia 11117 11 la1.rISIP Sjld0j1Oas alPIpauIUU 0117 arlsplO a5 of sarseaaau srm I? P!rs ail lounra 11 1BTT; 'O, Ilanal Os f.TSII7aTS S.iaA 0.171 suolllaod qml aql s.Trm snolarsA aSaql UT 'II;Ji1aaIll l$OITIITt lntl .117111rTTS AIUO 11777 a,IL IIpiq.o1 JO .fIlrlll 'sTI0ilL90fI aATI9aqsa.T 710q1 il d1IIIIJad saln;l a1TITTO.T .101110 IYlITlOJlad 111117 saaITaATI -,all%aa a1.xi1 II Soill aql SUVilUTPUT qarg~aa.f011~7aa aATl:1adeea aT0ITj Sq P~Ianp -11oa SITo?lr.STlaaAUT a.;msTlr pin; nollsanb to paoaaa a?qdskonwls v sa·1BIu qar:Q

'peal; luatulavdap 0111 do aeI7aaaP.I SPNlaJ 'Ill JOT aaIIopn1,dsi,.loo amllo Jo aIg pafqns aql saqaiqje PUT, sa.inaas 'aIqudra oar. 611[1 ST: aaTlopaollsaa.TOa WIT JO pans UOTIUVIoTP InotTl?m saa.klsue '1ITUTT OTIJ olado qaVa : P1IOTI ITIalIIlard -op pans OUOa7 UOIIVI~Ip alTel IIMIU :ITIaITTlaIldaIl r. JO pnall 0111 01 SlraVdl?a p:nos -JatI ~SOI JO a10M U al PaSOIdllla ass TIIOq : saaqdea.Soaals ,C11asuITICI Ran TIlog

apaTH s7 nOST.Tudnoa TpcqA7 iIIIm aDWo S,luaftV 070 a1 auo 0111 puB 001110 s,aalsrupar~ Iruanap all; ITT Uop1sod mail GUI aaaBlaq S11aUIIMIS Jo sJlulod SMUT 019 a.IOTTI 0670 lTIPTSTII ,ill ITT

'ssilio JO PIIITI ill ,PI?aV1;u71s a s! saalnbaa O1na 0711 leql IIV 'aII~HII R ITOST.Tlld -moa qalqm qlim 'aopleod all; Se 'a1auIaodull JO saIIIIP all] of so? "BIIIIII 'Jill Rlaepvlaa TMAa .1o aITIRS 0117 SIaSIVaJd ail nolllsod mail OUT imp Saussajau IOU ST II TIOIIISIId naU a JOT STIR JO RII:.I Rill ~apquxaalap ITT leql IaaPTAO a1 l1

'alllIssod sB A~alSISaad PUB dipcdTIJ sill a11rsn oIll paannAPH pull lil-soap ail pluoa ou;tIa ilanlm a.Tojaq jaunql.q Ia paplAOad 11g2I1 JO PV aoqv:,I SemI?PII POIaiamV 0711 lrnm SpIlmoad unBla aiq do ]Ioo7 Sail lnlil Ino In?O(T Xaijy 'P.Tnoq B Bans ]oJ 511171aoM TIT IEaZ JO ]1attf oil PamOII~ S,~I17 II:TII pile paroq jnonilsnfpil un TI57iOJq; oust 9~8T do late ao7Ie·I ArmlIBIT 1111 a=aalmn 6laadoad alg Uo SiInJSSa.>aUS Slump 001110 jum SIIIf °UTaslaxd to alloo7 Aluo ,ITaol BBS .fa71,7, 'pallet ~~IIATlq sllacoq IBUOT.°,az TUJOJ of sIJOJJa 'Plrog malsfq r maoJ of 9]!7017 ,Ill 30 sOAITVllrlasaA7io1 IiI°aI arp sm laaln7p11quisaal ATa7IT .111JIa 1.lot1a alaql 'aTTOITe1aa °aTTTTr°Uq .1o TIolI(II7.r101117 0711 aJO,1aq TITTIa.· aql JO IUallralllas It a.Tnaas Of laoJJa afaTII aZTSYUI(IIna III: a1r.,) Aa11y 'onTl 111111 Gaols ITaurTTlllOa Uaaq SlII TUIIRIOTA aql jrITI 'Pa'II:a.lo sr,l aindSTP ill UOIIISOd alIl ua71m palul -olA StT.a pj 6Tn,I Imp ITTUIunITa e aauo1111~7 'Vt71,T,ISf)~I _;w730Td.I.lh~T

.TTITUT.> aTTl jo squaul 0111 .OqUmalloa sIIInI>gjn snoupunlo~k pull polllllno aAOqr RIT1al1d III) ITaaAIIOII euolIslaJ 0111 Jo Saolslil aql osllalao Ill dolonap qj!qTH -xa paTlailllr q1Im sa1lJnrI 0711 .X(I ~TM.Tq naB 's17OTSaruuqas 'STimTaolsls .lao.-1

'palaog IUaollsnCPV PolorllOIl Imioller7 'uolsIAI71 qlanog'SJBlaaaag 'ls.Tl77I -·1zr,I'g IT TTIOJJ `P:'.q1'R SzlUIJIla,ll.IOllaI PTHI'39L$ `PG~F. sIrrITSlaaP PJPog aoqvq

9STI