"Your letter December 20th requesting conference in the above case.

"Will arrange to meet you at my office at 11 A. M. Tuesday, December 30, 1930."

December 28, 1930, General Secretary Treasurer Brandin to Torian saying that H:trlrt·r was out of town and asking posl.ponerneott.

December 29, 1930, Torian to Brantim suggesting Harper advise when he return.

"Conference January 14th.

"When clerk Sullivan reported sick on tile morning of September 6th, 1930, another clerk was called to work in place of Sullivan and was paid for t;.e day.

"The claim that Sullivan should also be paid under tire sick leave rule is without basis and is declined."

"The above styled case is yet pending and unadjusted. In keeping with the provisions of (lie amended Railway Labor Act, we respeetfrtlly request that you Inver our Committee in conference to discuss further and settle, if posribte, the claim by agreement, so that the claim tally be referred to the National Adjnatrnent Board in the event settlement by agreement is not affected.

"It will be greatly appreciated if you will name conference date for purposes stated above."

"Your letter September 7, 19::4:

"This case was discussed with you and Mr. Brandin in conference by Mr. Nichobsou on bintlary 14, 1931, and yon were given a decision in the case on January 16, 1931 and nothing further was heard from you. A situation in which no action has been taken since January 1931, cannot wider any course of reasoning be considered as pending. It is therefore our position that this is not a pending case."

"When we were unable to react an agreement in the above case in our conference ending J;tnuary 31st, 1935, it was my understanding that at a subsequent meeting to be arranged a joint statement of facts would be drawn in connection with the submission of the case to the National Railroad Adjustment Board.

"In our conference of July fair you advised that it was the position of the Company that this case was not `pending and unadjusted' and that Son must therefore decline to join the organization in its submission to the Board. We do not subscribe to the position that you take, arid this is your advice that we will submit the case to the Board ex parts."

Petitioners summarized substance of claim in their submission of October 23, 19(35, in their concluding statement:

"It is the position of the employes that the carrier was put to no additional expense and that the service suffered no detriment because of Sullivan's absence oil account of sickness on September 8, 1930, arid that Sullivan is entitled to compensation for file day under the Sick Leave Rule of the Agreement"

Carrier's Brief, submitted October 19, 1935, set forth objection to Board taking jurisdiction of the case and, without wailing those objections, attacked the merits of tile case.

497

1. Case was not "pending and unadjusted" within the meaning of that phrase in the amended Railway Labor Act.

3. Petitioners have not furnished respondent with duty they intend to use as required by rules of Board.

"Attention is directed to the fact that the foregoing rule requires payment to the employee off Oil account of sickness only where each of the following elements, among others. are present arid concurring:

"1. The work of the absent employee must be kept up by other regularly employed employees;

2. Keeping up of the work of the absent employee must not involve any cost to the carrier; and

3. The other employees who keep up the work of the absent employee must do so by working overtime without pay so far as may be necessary to keep up the work and avoid neglecting their own work.

None of the foregoing essential elements are present lit this case."

The Carrier laid considerable stress oil the pay roll record (Exhibit 1), which it is argued shows that Sparks was employed in place of Sullivan.

Both jurisdictional arguments and arguments on the merits of the case were developed at great length and with a ponderous array of technical legal contentions.

HEARINC BEFORE REFEREE.-.1t the oral hearing before the Board with the Referee sitting as a member thereof, each side assailed a substantial part of the factual and interpretational material submitted by the other side. Petitioners tools particular exception to the pay roll argument of carrier which they say shows nothing except that Sparks was recorded therein as being a substitute for Sullivan without throwing any light on the question whether he was such in fact.

The hearing did not contribute materially toward clarifying any of the issues.

OPINION OF THE REFEREE.-Three other cases to which the Clerks' organization is a party came before the Board from this property concurrently with this case. In each of these cases the carrier raised the jurisdictional issue and supported its contentions by arguments similar but not identical in every respect to the arguments used in this case. In each of these cases the alleged violation of the agreement began several years ago and in each case there had been prolonged interruption of activity on the part of petitioners in pressing the claim. The carrier contended strongly in each of the three cases that the prolonged silence of petitioners was tantamount to ncquiescenco in the ,status (pro and that for that, reason, among others, the claims were outlawed. Referee Spencer, referring to an earlier case from this property used this language. The record (of those controversies was) "voluminous, the issues multifarious and the arguments finely spun" (Award 137, Cr128). Mr. Spencer's comment applies equally to the four current cases.

In each of tire three other current cases (CL-238, 239, and 240) tire carrier's contentions as to jurisdiction have been overruled. The reasons for doing this took account of past conditions on the property, especially of the difficulty encountered by petitioners in establishing regular relations of conference prior to the effective date of the amended Railway Labor Act. Decision in those cases was rendered with a view likewise to what the Referee conceived to he the meaning, letter, and spirit of the rules, legal requirements, and proper procedure governing the respective issues. In essence, the Carrier was overruled on the jurisdictional issue in all those cases because in all the circumstances such action appeared to the Referee to be legal, equitable, sensible, and constructive.

An important influence oil the mind of the Referee in those cases was the fact that each case had to do with alleged violation of rates which pertained to the time at which the claims began to run, which continuingly pertained to the intervening time, and which pertained to the time when, failing settlement on the property, the respective cases were brought to this Board. As to current violations, if any, the right and the duty of the Board to take jurisdiction under

498

proper pr;.cedme~ was clear. In each of the th,oe cases any current violations ln,d their inception in file past alul the acts emmlailled of had continued substantially without interruption from the time of their inception to file time colaplaint was filed; the act^r. of file pall, of the present, and of till the intervening time were inextricably interwoven. It would have been impracticable, except arl'itrnrfly, to tic tiny date back of which jurisdiction would not be petinttted to run. To have denied jurisdiction altogether would have thrown the e;~.'(:8 out of court indi~c1'ilndnately without hearing oil file merit8, and the effect would lave been to place a stamp of appeovrd upon continuing and highly contested ex name interpretation of the ruder. This would have been tantamount to permitting the carrier to change the agreement by violating it, ill case an actual violation had occurred (CF Award 137, CI 728).

79xwnded comment has been made on the three other (rues which came to this Board from this property concurrently with file instant case because all of those cases avert basically different from this case in one particular. In sharp distinction to file other three cases, this one. has to do with a single act which wax complete ,vlcen the carrier finally declined payment to Cleric Sullivan for September 8, 1930, on which day he did not work on account of sickness. In ut!ler words, file issue ill this case is the right to five dollars for one clay's poly September 8, 7930.

Petitioners have expressed indignation at file personal injustice suffered by the claimant. It is possible that we should find this indignation justified if we were able to go back six years and recreate all the circunistalnes, but obviously this would be impossible even if the record were more nearly perfect ;ham it is. In :my case, if file circumstances in which the claimant form(' himself on September 8, 1,130, made the loss of a day's pay it matter of exceptional hardship, it is now far too late suitably to redress the injury-. The case coming Ill) at ibis time, years after the event, call only be considered objectively ill the light of governing rules and of legal and procedural requirements.

From the standpoint of public policy and sound procedure it must always be remembered that this Board is a gloat national ag·.,ncy of adjustment, the dignity, repute, and effectiveness of which is It in:itter of eulcern to every citizen. The standing of the Board is likely to be enhanced rather then jeopardized by interpreting its jurisdiction as liberally and broadly as eau rlqditlv be done in respect to continuing acts alleged by one side or the otl;er to be in violation of agreements, even though those acts had their inception slnne dnlc in the past. In many eases, as in the three previously discussed, tile total sitmition out of which clail,is arise can be judged fairly only- by running current or recent issues back to their inception.

Isolated occurrences from the past which are linked to the present by no chain of intervening events must stand in a considerably different light. The respect: in which this Board is held and its consequent effectiveness are sure to suffer if it throws down the bars unduly to back claims based on isolated and relatively trivial incidents. For this reason, the Referee is disposed to scrutinize even the jurisdictional aspects of this case with considerable care.

As above noted, the Carrier has denied the jurisdiction of the Board on three main grounds, to wit:

3. Petitioners have not furnished carrier with data as required by miles of the Board.

The Referee is lint disposed to give much weight to the third of these reasons. Reasons one amt two are essentially the same since the failure of petitioners to persist in pressing the claim between January 1931 and September 1931 is the circumstance :vldch might divest it of the quality of a "pending and unadjusted clniln."

The logic in support of reviving an isolated claim for a (lay's pay- after it has slept for three and one-half years is much less convincing than the logic 1 ,2ck of it renewed effort to correct, from the time of its inception, a continuing misapplication of a rule by which an employee is being penalized day in and day out. This fact amt the jeopardy to the standing and efrectivenet,s of the Bnat(1 that ~·d:=lit colne front throwing down the bars to old elalins hasef on isoh;ted oceurrenecs, strongly inclines flip, Referee, even under the circuins.!anecr: vhiclc obtaineI upon this property prior to June 1934, when the -1;,1 Pailway Labor Act beenne operative, to hold that within the purview eoi Ill:n is )lot it "pending and unadjusted case."

49;)

Floovever, notwithstanding the distinction above l `cd I.^~, :a ihis ell -a :lull 01235, 239, and 240, in all of which the Board a,, i J, li<·tilon, the backgroun,l of those. cases and illis utle tire fulrllanielttallysimilar. AhLollgh the Referee cousidera the distinction bolvvrell ttfia,'e cases and this one of great iloportance, it tan do it(, hortll to pas, ovor tile jllrlalietion,·.l issue for the moment and csploro tile record for the light it inay throw oil the llwrlld of tile claho_

RtR·rrnce has he·.·ll made to the ·rauclty of chlrify~ag d'rt·le.ioll :;t IPO oral hearing. Even under norin;il chcunlsutoces this o.aiill Ina bale 1,0·11 .·~tlall;re in view of the long htl,so of tinw hettveca the elclds lli~eus.,ed alnl tllr· (.E_ I-t to interprcC fllcro. The Referee mas :;trollgly of tile olorion, :n: he I!· ....-I to tha· <acla·r.a Chailtnnn lion the Aillelw·, f.-r tile a^.~_ri~r, That oNr:,l.;~-i- tile sstr.tc of lniact whi:Ji, appears to er;:L bAtvcctl the pttrti<·s, ilu; instant case woilld uinnt-t certaeinl~ have I:rrn settb,d oni of court oiihout prejuchce to ail,- of 11te principles invld-.ed. Ill the j·atglneut of the Rcferce this is :rbat should have happened.

i'o bo sure illicrpretation of a significant, rule like. the strtc leave rui·· is a natter Of bnpoitancr, but the ;:otection of a su:i,~Ple and thuol·: ca,(, Ihrollgh which to channr' such httettaw:li";l is rto ll·rs i _,liort,wi, and I11P in:at.ult cas<· does not napless tile Referee a, meeting tile rcpornneat.. There are of course certain facts of record which can be verified but tile inlrrpreoitiou to be placed upon tLesc veritable facts Is sharply conteaed. Hten if every witness should tlo his utmost to recall tlccurately every chcunistanco :vhich alight throw light on tile point lit issue, the 1 relwhery of buncin iuelnol y would In:lke tile task ialpo:;able. As above hrnffied, the Referee believes that a sane attitude of reciprocal cooperation wouh: have prevented this case iroln reaching tile Board. Since it is evident that n somewhat diferent attitude from this obtained on tit(, properly both in Seplelnbel 1930 Mica the occasion for the claim arose and in September 1934 when lire case wits hoolightt, and since the prevailing attitude wan obviously mutual the Referee regreta that ally decision must operate technically in favor of one of the parties 13owever, the amount involved is so sluall that this is not serious.

For the reasons above outlined, the Referee bads that even if this ease should I)O adjudged pending and unadjusted oil jurisdictional grounds, essential governing facts and circmnstaulces have been too much obscured by time to permit of any confident decision on the merits of tile case.

AWARD

B. On Merits.-Case not proven because of obsenrity colnerning essential facts and interpretations.

O. Status of Claim.-Disallowance because of dubious jurisdiction and insufficient evidence.

D Sick Leave Rule .-Referee declined to channel any interpretation of little through this case.

NATIONAL RAILROAD ADJUSTMENT BOARD.