NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: "Claim of the General Committee of The Order of Railroad Telegraphers on the Missouri-Kansas-Texas Lines that, Mrs. Florence Nellans Harris was improperly dismissed from the service of the Carrier on November 30, 1937, account marrying while in the service, and that, she shall be reinstated to her regularly assigned position of second trick telegrapher at Fallis, Oklahoma, and be compensated retroactively to December 5, 1937, the date she returned from a leave of absence and was ready to resume work, in the amount she would have earned on the position."
EMPLOYES' STATEMENT OF FACTS: "An agreement bearing the date of August 1, 1928, as to rules, working conditions and rates of pay is in effect between the parties to this dispute.
"Mrs. Florence Nellans was employed in the regular manner on March 21, 1921 and remained in continuous service of the company until removed therefrom by the management on November 30, 1937, account having married while in the service.
"On August 16, 1937, Mrs. Nellans married George A. Harris and she continued to work thereafter. On October 8, 1937, she requested, and was granted, a sixty (60) day leave of absence. Upon her return from this leave of absence granted by the management she reported for service on her regularly assigned position, second trick telegrapher at Fallis. Her telegram notifying the management of her intention to return to service read as follows:
"The rule of this carrier in the matter of married women was not and is not an isolated one. Numerous railroads have a similar rule; numerous other Corporations have a similar rule. Labor organizations themselves have had and dohave such a rule. There have been comments in the press at various times concerning the rule. It cannot rightly be said the rule which was adopted was essentially unusual or peculiar to this Carrier.
"The handling of this subject in 1927 with The Order of Railroad Telegraphers was definite and justified the Carrier's conclusion that the rule was acquiesced in by the Organization representing the telegraph operators ofl the Missouri-Kansas-Texas Lines.
"Since the organization knew or at least has known of this rule since 1927, there has been sufficient time and opportunity to enter general protest against it and seek to negotiate a settlement of the question if for any reason they desired to withdraw their acceptance after the conference in 1927 on the appeal of the case by the General Chairman to the President of the Organization. This has never been done and after the conference with The Order of Railroad Telegraphers' Vice President in 1927, the Carrier is justified in considering the rule was and is accepted and acquiesced in by the organization, for the employes whom it represents.
"The Carrier respectfully requests the Board to find for the Carrier and deny the complaint of the Organization and employe.
"If any statements in the employes submission are not fully explained in this submission, we desire ample time and opportunity to make reply."
OPINION OF BOARD: The question in this case is over the right of the carrier to discharge a woman employe for getting married. Her seniority date is March 21, 1921. The carrier claims that it adopted a policy in 1921, including that:
The stated policy was never published or promulgated in any form and was not made a part of the seniority or discipline regulations of the schedule
through agreement between the parties to it. Clearly the carrier could not by unilateral action invade the vested property right the claimant had in seniority by the adoption of any regulation subsequent to her seniority date. The carrier has failed to show that it had established this policy prior thereto.
Apparently realizing this principle, the carrier in 1927 undertook negotiations with the organization, looking to an agreement to the same effect. The organization here concerned declined to enter into such agreement, although the carrier claims the Clerks' organization did. Also during the year 1927 a specific controversy arose over the discharge by the carrier of another woman employe on the same ground, and it was ultimately handled with the carrier by a vice president of the organization, with the result, as the carrier claims, that said vice president agreed to te adoption of such a rule. We do not so read the understanding there arrived at. The question actually in controversy between the parties was over the fact that in still another case the carrier had not enforced the policy, and the agreement reached was that there should be no discrimination but that both employes should be discharged. There is some question as to the power of the vice president to modify the agreement of the General Committee without its concurrence, but in any event we do not construe it as a modification of the agreement but rather as the settlement of a particular controversy. This view is emphasized by the fact that a new schedule was entered into effective August 1, 1928, less than a year after this alleged agreement, and it contains no reference thereto nor any change in the seniority or discipline rules affecting the subject.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon and upon the whole record and all the evidence, finds and holds:
That the carrier and the employe involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the action of the Carrier in the instant case was in violation of the terms of the prevailing agreement.