refer to later, the present Referee, who has the utmost regard for Judge Sainuell's ability, must express his doubt of the correctness of his conclusion.

The language quoted, we take it, was used to prevent the possibility of any party losing his rights, and is evidence of an intent which pervades every section of the Act. To further interpret its meaning we must look to other provisions of the law if they are inconsistent therewith and give the whole such a construction as to elect the intent of the Congress. Paragraph (i) of Section 8 ,just a5 plainly provides that the proper Division of the Adjustment Board, newly created, shall have jurisdiction over all disputes between employees and carriers growing out of agreements concerning rates of pay, rules, or working conditions, "including cases pending and unadjusted on tile date of approval of the Act" There is no exception noted of disputes pending before the Mediation Board. Section 5 provides that the services of tile Mediation Board may be involved in eases which are slot referable to the Adjustment Board, and again no exception is expressed as to cases pending before it. To involve the farther services of the Mediation Board in a dispute of this kind, whereof the Act divests tile Board of its former jurisdiction, might well warrant the Board in dismissing it for that reason. Over many disputes not involving the hiterpretation of agreements the Act in Section 4 continues the jurisdiction of the former Board of Mediation ill tile present Mediation Board. These, of course, it must handle to a conclusion. Bat Oin we say that the law means that the Board shall handle cases of which it has given jurisdiction to another tribunal upon its effective date to an ultimate conclusion? Is a dismissal by :t party or by the Mediation Board for want of jurisdiction a conclusion so far as the latter is concerned and a compliance with tile Act? It must be noted that under neither tile earlier nor the present law has the Mediation Board or its predecessor the power to render a judgment.

AS we understand Judge Samuell's earlier awards, lie bolds that, if the Mediation Board handled a case to a conclusion without that conclusion resulting in a filial adjustment of the grievance oil its merits, the claimant may then bring tile dispute to tile Adjustment Board as one pending and unadjusted at the time the law went into effect. In its argument in this docket the carrier insists that tile cases were brought to a conclusion before the ilediation Board. We quote its language verbatim: "The employees * * * withdrew the cases which in fact and in law amounted to a `conclusion' of the cases. `Conclusion' recalls `end' and the cases referred to are as certainly ended as any ease call be."

Judge Sainuell apparently thought that a voluntary dismissal of- a case was not a conclusion. Carrier hero seems to disagree with him, slid, in our ouilimn, with some prolniety. But if it admits and takes the posilioll that a. couciusion was reached, then it would follow that Judge samuell's condition pleceiour tills been met and tile Division would have jurisdiction. The carrier's position here seems to be that the case is no longer pending arm unadjusted and that tile 'conclusion" is al trial adjudication of a clabinunt's rights, ail end which can't occur until the proceeding is couchishely disposed of oil its nieritt.

The former awards may have also beell ell final ill their falllao to give weight to a principle of tile law which has been adopted by tile courts from the earliest times. The right of at party to dismiss his action without prejudice, so long as ]its adversary is not injured, lilts never been denied in any tribunal. To refuse it, tile courts have said, would encourage litigation. A plaintiff has aiways been able to dismiss ail action at law and file a stilt in equity, to dismiss his ells, in one court and bring it ill another having coneni'relit or propel' jurisdiction.

But in tile case before its we have the additional fact that the disinissal of the action pending before the Mediation ]:card was doin under an agreement between tile employes and flit carrier, antedating the effective (late of the Act. The tatter had expres*eed its surprise that tile ensos ever had boon filed without its kiiowicdge and approval. It laid sllgge.;ted that there was still a possibility of amicable ad.lustaneirt between the parties thelnsolves, amt whell this prospect was advanced the General Chairman at once requested his President to dismiss the (use oil the docket of the Board, notifying the carrier of )as request ill a letter cw:firining tile understanding and receiving no protest from the latter. It is true that such action was not taken by tile Brotherhood until after the Amended Act became effective, bill thereafter the parties met and attempted to get together in settlement. The record shows that there were eight eases in all between the saine parties pending before the Mediation Board and that three of them were actually adjusted. Failing to reach that result in the instant

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case, the Brotherhood brought it to this division which is expressly given the right to render an award in disputes pending and unadjusted. Surely the carrier, having agreed to a withdrawal of the case, cannot now be heard to say that such action has deprived the claimants of their rights, it having been instrumental fit placing them in their present position. They acted in good faith anti upon the representation that the carrier would consider the disputes as still pending and unadjusted, a confidence that the carrier's subsequent negotiations confirmed.

It is urged that the parties cannot confer jurisdiction of the subjcet matter oil a tribunal by agreement if it has none under the law. This is unquestionably correct. But the Act expressly gives the Adjustincut Board jurisdiction over cases pending and unadjusted. Judge Striation has said that they must have been handled to a conclusion by the Mediation Board if they were on its docket. The dismissal by agreement constituting a conclusion as the carrier correctly asserts, the disputes remaining unsettled, the law, not the parties, provides that they may be referred by petition to the Adjustment Board to be handled by it to an enforceable termination,

To the foregoing we must add a further observation. In the mind of the present Referee there has always been most serious doubt as to how far the division can and should go in deiiyhig its jurisdiction. The act itself says that the emplyees and carrier utay refer tiny griccunce complying with Section Three First (I) to the approlnbate division of the Adjustment Board for the purpose of securing tin award on its merits. The Board in its general rules has prescribed that its divisions shall find fit every case that they have jur6diction. It is within the purview, of the Act for the division to inquire whether the dispute between employee or a group of aupboyeos and the carrier grows out of the interpretation or application of agreements concerning rates of pay, rules or working conditions, whether it has been handled fn the usual manner before coming to the Board, and whether the division is the appropriate one to adjust it under the allotment of jurisdiction to the folly independent divisions. Tile parties then have a right to be heard according to Section 3 of the Act, and if the Division cannot agree a Referee may be appointed to sit as a memer and make all award. In short, tile Division may determine whether the dispute bas been properly progressed and is referable to it. But for either it or the Referee to extend its functions fit adjudging the jurisdiction of another Board under another Section inapplicable to it may be going rather far afield from those duties ascribed to it in the provisions relating to its procedure. If the dispute were pending and unadjusted oil tbo date of the aplcoval of the Act, insofar as tLe division's work is defined, it may be referred to it for an award, the other elements mentioned as prerequisite being present

In any event we arc coutildent that in case of doubt the uncertainty should be resolved in favor of the Board's jurisdiction. If it errs in assuming jurisdiction, such error can always be questioned and corrected fit the courts, through which tin award is enforced. If the division errs in denying its jurisdiction, a claimant whose case tray be of vital importance to himself may be unjustly deprived of his rights and left without recourse. Ile can no longer invoke the services of the -Mediation Board told has lost his day in court which the Amended Act manifestly intended to insure to him.

Before considering the case oil it real merits, several other objections raised by the carrier should lie disposed of.

If we understand the carrier, it claims that under Rule 24 tile petitioners, asking for payment for tithe, should have personally filed their claims in writing. That rule applies to claims of the character embraced fit Article VI within which this grievance is not included. The Railway Labor Act provides that any employee may be represented in any controversy by representatives of the labor organization and of his choice. The rule referred to only requires the management to notify tile claimant in writing with its reason for non-allowance when tittle is claimed fit writing order Article VI. This griciance, we believe, is one of those covered by oilier rules, fit(, terms of which have been compiled with.

Carrier further urges that the clalni has been changed since it leas first presented. Originally the demand was made that: First, claimants be restored to tile positions of which they have been deprived in contravention of tile rules; second, that they should be compensated for wages lost; and third, that the employees who replaced them should be removed from service in the seniority

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districts to which they were transferred. In the dispute as it is submitted to this Division the third element is omitted. We can see no reason why a claimant should not be permitted to abandon any part of his claim so long as the adverse party is not prejudiced and we can see no possible prejudice in such abandonment in this instance. A71 that is required is that no issue shall be submitted to the Adjustment Board which the parties have not had all opportunity of adjusting before it is submitted for final determination.

There is still another preliminary question. The carrier seems to contend that even it the claimants were improperly displaced, former seniority of the employees transferred would commence to run from the time of their assignment to their new positions by virtue of Rule 26. But under part F of Rule 46, unless the employee is properly transferred from one seniority district to another in pursuance of the earlier provisions of tire rule, which in the instant case are alleged to have been violated, his seniority begins to run only from the date of his transfer.

This brings us to the real dispute which is involved in the submission. The record is excessively voluminous and all sorts of irrelevant and collateral matters are discussed at length which have no vital hearing on the issue before us for decision. It is of no consequence how other cases have been handled unless, as is not claimed, they afford a binding precedent. And yet the Division is compollel to scrutinize over 350 pages of record for fear of missing something that i, material when the pertinent facts, and argument could have been condensed into about one-tenth that amount of space. Tire simple problem for our dole-rniwrtion is whether tire carrier violated the rules of tire schedule in allowing the displacement of certain employees in this one instance. We shall state the essential facts as briefly as possible.

Prior to October 7, 7932, the carrier maintained offices for three Assistant General Managers at Los Angeles, Dl Paso, and Sacramento. In each of these certain enrploNees were engaged ,and each office constituted a separate seniority district. On that dale the offices were abolished. Two of the Assistant General

anagers were called into the San Francisco general office and one retired on account of his health. Tile employees of the Sacramento office held acquired seniority on a certain division which they exercised and they are in no wise involved in this dispute. The employees of the other two offices were permitted to displace employees ill the seniority districts of the Los Angeles and Fl Paso divisions err which they held no seniority. Such displacement was made on the basis of their seniority on the Assistant General Manager roster.

The carrier contends that it was within its rights in making such transfers under the provision of Rule 45 of its agreement with tire Clerks and that the operation fell witbin either paragraphs A, C, or F of that rule. It could only he nrnler one of them, if any. Paragraph A permits transfer of employees with their positions, retaining their seniority from one district to another. This call only apply to a partial transfer of work and of employees. the two districts remaining thereafter intact. Paragraph C covers the case of consolidations, where two districts arc merged and thereafter become one. Paragraph F relates to transfers of employees to districts in which they have no seniority, in which event they may retain their standing fit their former districts or establish new .seniority from the date of transfer in those to which they are assigned. Manifestly the carrier can only seek the benefit of paragraph C, and what it did was either a consolidation of the two districts or a disregard of the rules. This was tire resource upon which tile carrier relied in its final argument. Rut in respect to consolidation, carrier's position through the numerous briefs which it filed is not altogether consistent At first it took tile stand that most of the work performed in the Assistant General Managers' offices was turned over to the division .superintendents; then a substantial part, and. finally, that it wasn't necessary under the rule to transfer any work at all.

This last hypothesis is wholly untenable. A consolidation of seniority dis tricts implies a cornbirration of the work formerly performed by the employees of the two or more districts. The employees arc allowed to retain and exercise their seniority rights on the theory that there will be subctautially as much work far each acrd all as there was before. Of course, if work disappears before or after a consolidation, positions may be abolished, but when the rule states that employees rnay occupy positions similar to their former ones it indicates that the work has been merged into a new combined office and will be there to be done. The clemerdal purpose of seniority districts is to insure the employees so much service as business conditions will afford, and to say that a large nurn-

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her of employees holding no rights in the district may be brought into it without bringing with them enough work to keep them fairly busy was certainly never the intent of these who negotiated the rates and who were trying to preserve the jobs of workers whose length of service warranted their protection.

Was there then a consolidation of seniority districts in a proper sense of that term? It seems that the .lssistant General Manager's functions were previously largely those which are delegated often to general superintendents, that each exercised supervision over a number of districts and acted as intermediaries between the division superintendents and the president slid general manager. When they were taken into the San Francisco office they continued to do much of this work. One later tools over the supervision of operations on a larger number of districts, another helped to handle employee disputes arising over a larger territory. Matters with the divisimul offices once handled with the Assistant General Managers are now taken up directly with the home allies in San Francisco. It is certain that these supervisory powers over various divisions were not delegated to the superintendents. But it is claimed that certain files were turned ever to them, their duties with reference to issuing passes wore enlarged, engineers who had been attached to the offices abolisbed, though not in the clerical departments, worked thereafter out of the divisional offices, and certain official positions in subsidiary companies previously occupied by the Assistant General Managers were later filled by the superintendents. To attempt to analyze these contentions in this filafing°, as we have outside it, would lengthen it unduly, and in view of the award we have concluded to reach would hardly be justified.

It is rather significant that while a considerable number of employees were displaced, the volume of work in the divisional offices after the transfer did not necessitate any increase in either instance in the total staff. It is true that force reductions may have been obviated but such it is said had already been rather drastically made. It is extremely difficult to define from the carrier's testimony just how much work was turned over. ']'he employees say that they have made an actual check over a period of three years and that all of it together would not take more than thirty minutes of one person's time each day. If this summation is unfair to the management it would have been easy for it to have shown last what did happen, and we tvish that snore of the space consumed had been devoted to a development of this most salient subject. It seems almost certain that insufficient work went over to occupy a very substantial part of the time of the employees transferred.

Some distinction has been essayed in the transfer of men to excepted positions. None, we think, can be made. One holding such it position is only entitled to retain his seniority in his own district or transfer it to another in one of the exceptional situations covered by Rule 76.

In order to be fair to the management, we believe that if it can prove that more work was consolidated than is indicated by the only definite evidence we have before us, it should be credited therewith. Under Rule Z, Clerks of the character of those involved are entitled to classification and protection of the agreement if they devote not less than four hours a day. We feel that in an adjustment of our award between the Brotherhood and tire carrier the latter should be allowed the transfer of one employee for each four to eight hours of service per day of substantial regularity brought into the divisional districts through the transfer, whether it can be called a consolidation or not.

AWARD

Claim sustained as to replacement and reimbursement to the extent that the complainants under all subsequent circumstances would have benefited, had they not been displaced, with deductions of all intervening earned income, and subject to the credit allowable in the last paragraph of the findings.

NATIONAL RAILRDAD ADSUSTEIENT BOARD