Petitioner did not make any protest to his employing officer because of being denied Job Nos. 1 and 2 in November, 1934 until April 9, 1936. In November, 1934 upon request of Petitioner, the General Chairman of the Brotherhood mailed Petitioner an application blank for membership in the Brotherhood, advising Petitioner as to the initiation fees, but told him that the Brotherhood laws did not permit the Brotherhood to handle his grievances.

It is admitted that the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes is the representative of the craft or class of employe here involved.

OPINION OF BOARD: The issue involved in this case deals with the jurisdiction of the Board to entertain the petition of Petitioner. In disposing of this question we have in mind that the merits of Petitioner's claim are not to be considered; that there is no disagreement between the Carrier and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express

and Station Employes of Mountineer Lodge 838; that the Brotherhood could not handle the claim because it arose prior to Petitioner's membership in the Lodge, and that orderly administrative procedure demands that presentation of grievances to the Board should be through a Brotherhood.

It is the position of the Brotherhood that under the provisions of the Railway Labor Act, there being no dispute between the Brotherhood and the Carrier, the Board is denied the right to hear the protest of an individual employe, and the Petitioner failed to comply with Rule 29, Article IV, which requires that grievances must be presented within seven days after their occurrence.

It is the position of the Carrier members of the Third Division and the Petitioner that under the provisions of the Railway Labor Act an aggrieved employe has the right to have his grievance disposed of by the Board without being represented by the Brotherhood.

`(1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; (2) to forbid any limitation upon freedom of association among employes or any denial, as a condition of employment or otherwise, of the right of employes to join a labor organization; (3) to provide for the complete independence of carriers and of employes in the matter of self-organization; (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules or working conditions; (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.'

"It is further stated in the statute that:

`It shall be the duty of all carriers, their officers, agents and employes to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employes thereof.'

"It is further provided by the statute that:

`All disputes between a carrier or carriers and its or their employes shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carriers and by the employes thereof interested in the dispute.

`Representatives, for the purposes of this Act, shall be designated by the respective parties without interference, influence or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employes for the purpose of this Act need not be persons in the employ of the carrier, and no carrier shall, by interference influence or coercion seek in any manner to prevent the designation by its employes as their representative of those who or which are not employes of the carrier.'

"One of the primary purposes of the Act appears to be to provide for collective bargaining, in the following language:

'Employes shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employes shall have the right to determine who shall be the representative of the craft or class for the purposes of this Act.'

"It is further provided:

'In case of a dispute between a carrier or carriers and its or their employes, arising out of grievances or out of the interpretation or application of agreements concerning * * * rules, or working conditions, it shall be the duty of the designated representative or representatives of the carrier * * * and of such employes * * * to confer in respect to such dispute.' "

"A consideration of the foregoing clearly shows that it was the legislative intention to provide, not only for collective bargaining but also, as far as possible, to provide for the adjustment of disputes by representatives designated by the carriers and by the employes. The provision that such disputes 'shall be handled in the usual manner up to and including the chief operating officer of the carrier' assumes that there is a recognized manner of handling such disputes. Rule 35 of the Schedule of Rules between the Union Pacific System and the union, which is one of the principal provisions with which this dispute is concerned, in this case justifies and makes clear this assumption when it provides that grievances shall first be taken to the foreman general foreman, or shop superintendent 'by the duly authorized local committee of the employes or their representative,' and thereafter to the highest designated railway official. In this case it can, therefore, be said that the usual manner of handling such a dispute, as provided by statute, is that set forth in Rule 35 of the Schedule of Rules, that the employe shall be represented, in grievance claims, by the duly authorized local committee or their representative. *

"Obviously, the determination of different cases will depend upon the varying provisions of agreement between carriers and employes. If, according to such agreement, it were provided that an employe should present his claim individually against the carrier, such a manner of presentation would be 'in the usual manner,' as provided by the statute. There might well be cases in which there was no provision in a contract relating to disputes; and in such a case the inquiry would necessarily be determined, upon review before this Board, on proof of what the usual manner of handling such disputes actually was; and the same would apply where there was no contract between the carrier and employes. But the only way in which disputes may be referred by petition to this Board is upon showing that they were handled with the carrier in the manner provided for by contract, or in the usual manner adopted by the carrier and its employes.

"* * * In our opinion the section of the statute quoted by the court does not provide for such individual negotiations and presentation of a petition before this Board, but merely provides that, upon a hearing before the Board, the individual petitioner may be present and heard, or that any representative designated by him may be so heard. In reaching such a conclusion, we recognize a distinction between procedure for review, and what may be permitted when review is actually had before an appellate tribunal.

"In order that this Board may assume jurisdiction of a dispute on petition, it must appear that the dispute has been handled in the usual manner in negotiations with the carrier as provided by the statute; and that it is only in case there has been a failure to reach an adjustment in the manner so provided that this Board will review such proceedings. In the instant case, there was no compliance with the statute on the part of the petitioner. The usual manner of negotiating with the carrier was not complied with. There was no failure to reach an adjustment in the usual manner. Petitioner, having failed to pursue the required method of presenting his grievance, which in this case was that provided by the agreement between the carrier and the employes, this Board is without jurisdiction to pass upon petitioner's claim."

"There is an agreement in force between the Erie Railroad Company and the mechanical department employes of such carrier, which provides as follows with regard to grievances:

'(a) Should a dispute arise as to the relative standing of an employe, or any other controversy arise, growing out of this agreement or from other cause, that cannot be adjusted by the Erie Railroad Company and said employe, the matter in dispute shall be referred to one or both committees established and constituted as herein and hereinafter provided, for a decision by a majority vote thereof.

'(b) Local Shop conference committees representing all Shop Crafts will be elected from the employes from each shop point, as may be agreed on, who shall represent the employes on all matters involving any misunderstanding concerning discipline, wages, and working conditions. All such differences shall be adjusted, if possible, by the local conference committee at the meeting at which they are presented. If differences are not so adjusted they shall be referred to a District Adjustment Committee made up of the local Chairman and General Chairman of their respective crafts or their authorized representatives (2), representing the men; Shop Superintendent, District Master Mechanic or Assistant Superintendent of Motive Power; or their representatives (2) representing the Company. A majority vote of the District Committee to finally decide the controversy.'

"Petitioners have never complied with the foregoing rules. The dispute in question has not been referred to the local shop conference committee or the district adjustment committee. The Railway Labor Act provides that disputes between a group of employes and a carrier, growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, shall be handled in the usual manner, up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the dispute may be referred by petition of the parties, or by either party, to the appropriate division of the Adjustment Board. (45 U. S. C. A. Sec. 153 [11.) In the instant case the usual manner of handling such disputes as that in question, is according to the provisions of the contract. These requirements have not been complied with. Failure to follow the procedure required in the statute, and defined in the agreement, leaves this Board without jurisdiction to entertain the petition. See Gooch v. Ogden Union Railway and Depot Company."

"With respect to the second condition precedent, the story is entirely different. This Board has jurisdiction only in case the parties fail to reach an adjustment.' Here the parties did not fail to reach an adjustment. They decided that the claim was without merit. The statute does not say that the dispute must be settled in a manner satisfactory to the employe individually. Mr. Hildebrand designated the representatives of his union to act for him; they conferred with the proper representative of the carrier; they came to a decision with the carrier, and, so far as any further proceedings under this statute are concerned, that decision is final. This Board has no authority to review it. Its jurisdiction would attach only if the parties, acting through their duly designated representatives, have failed to settle the controversy themselves."

"We, therefore, must hold that this Board has no jurisdiction over this case, since one of the conditions required by the statute has not occurred-namely, a failure of the parties to reach an adjustment."

"It is also suggested that an employe has a constitutional right to present his grievance in person. Assuming without deciding that he may not have such right under the Act here in question, there is, even so, no denial to him of any constitutional guarantee. He is not oompelled to accept the benefits of the Act. If, however, he does so, he must proceed in strict accordance with its terms."

It is a well settled rule that the Board only has jurisdiction in the event that the parties fail to reach an agreement and that the dispute has been handled in the usual manner in negotiating with the Carrier. It is admitted that the Brotherhood in this case is the representative of the class of employes here involved.

"The disputes between an employe or group of employes and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the Chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the dispute may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."

It is admitted that this dispute was not handled by the representative of the employes authorized to represent them. It is also admitted that the dispute was not handled "in the usual manner." Employe Rudd states:

"Petitioner recognizes that orderly administrative procedure demands that ordinarily presentation of grievances to this Board should be through a Brotherhood."

It follows from the authority quoted and the facts in this case that an individual employe is not a party to the dispute and may not invoke the jurisdiction of the Board.

FINDINGS: The Third Division of the Adjustment Board finds and holds:

AWARD