case, why not do the only fair thing and reinstate these men to their former positions and seniority standing? If you will do this, we, no doubt, can come to some understanding covering the wage losses they have sustained since November 18, 1938.

'I shall be pleased to hear from you at an early date, and beg to remain,'

'Your letter February 25, claims of Messrs. Hopkins, Cothern, Christman, Orr and McMillan.

'The status of these five men was not a distinct and separate grievance as you claim, but was one of the principal issues involved in the execution of an agreement covering Red Caps. We insisted on the acceptance of our viewpoint in this connection as a condition precedent to execution of the agreement. This was clearly indicated in the correspondence that ensued and the conferences that were held prior to execution of the agreement. I am sure that local committeemen Banks and Woodery will bear out this statement. As a matter of fact, Mr. Banks talked to Mr. Wicks after the settlement and asked him to give consideration to the reemployment of one or two or these men strictly as a matter of leniency.

'We are not worried about our ability to defend our position. All we want to do is clarify the issues so that everybody concerned will know where they stand before we get to the Board in the event the case is not withdrawn.' "

OPINION OF BOARD: This case involves petition for reinstatement of five men in effect discharged. They are ushers or so-called red caps. For years they were not considered as employes of the carrier until recent decisions holding them to be such. When these decisions came down, steps were taken to organize them, and negotiations instituted with the carrier in question by the complainant organization, which satisfactorily established representation authority to obtain a working agreement. These men were discharged while the negotiations were on, but before they had resulted in any contract. Under the contract finally reached they would have been entitled to a hearing on charges before they could be removed from the service. Admittedly, however, the contract cannot be deemed retroactive and it, therefore, has no bearing.

The carrier challenges the jurisdiction of this Board to deal with the subject matter at all. It says that the only jurisdiction of this Board is to deal with disputes arising out of agreements subsisting between the parties at the time of the occurrence of the matter complained of. It says further that at common law it had the right to discharge any employe with or without reason.

We think this ground is too narrow. The Act itself does not limit the jurisdiction of the Board to disputes arising out of agreements. Paragraph 3 (i) reads:

"The disputes * * * * growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * * *."

There appear, therefore, to be cognizable by this Board, grievances other than such as might arise out of agreements. Just what they are it is unnecessary here to explore. In the instant case it is charged by the petitioner that they were discharged for their activity in organizing a union. Section 2 Fourth of the Act guarantees to employes the right to organize and prohibits carriers from questioning such right or interfering in any way with the organization of employes. To this extent the common law right of a carrier

to discharge an employe for any or no reason, in the absence of an agreement, is modified by a Federal Statute which prohibits such discharge because of unionization activity.

Although the petition here charges that the discharge was on account of union activity, there is not a particle of evidence offered to sustain the charge, which is expressly denied by the carrier; and the surrounding circumstances such as that organization was under way at the time, which indeed is the only evidential circumstance, are quite insufficient to warrant the inference that this was the cause of the discharge. On the other hand, there is a slight amount of evidence that would indicate the discharge was for other reasons.

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 employes involved in this dispute are respectively carrier and employes 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

AWARD