2. The standard employment application, form 2187, (photostatic copy shown) was completed by Miss Bliss. It confirms fact that she knew of and understood the employment regulations concerning female employes.

6. The case of Miss Bliss was no different than many others in the same office and in other departments on the railroad and there were no extenuating circumstances warranting retention in face of fact that at the time single girls were available.

8. Miss Bliss in signing and agreeing to the employment policies did so on a purely voluntary basis. She fully understood them and agreed to abide by them.

9. The National Railroad Adjustment Board recognizes such regulations. See Award 689, Second Division, and Third Division's ruling 11/6/40 in the Donovan case.

10. Such regulations respecting females who marry while in the service are not unusual.

OPINION OF BOARD: On April 7, 1942, the petitioner, then unmarried, applied to the Cleveland, Ohio, office of the Carrier for a clerical position, and was employed as a comptometer operator on the day following. She signed and filed a written application for work in her maiden name, Irmgarde E. Bliss. That application contained the following statement and agreement:

The petitioner, on June 26, 1942, married one Selby, and her claim is filed in the name of Irmgarde Bliss Selby. She did not advise her employer of her marriage until September 16, 1942, and thereafter, on September 23, 1942, she was notified of a hearing and investigation on her case, the notice referring to the statement and answer quoted above, but making no specific charge against her. The hearing was held, and was fairly conducted. Petitioner was confronted with her statement, quoted above, and admitted signing the same; her letter to the carrier giving information of her marriage was referred to, whereupon, Mr. Pasman, who was conducting the hearing, after some explanation of the Company's policy said:

"In the circumstances, I am left with no alternative but to inform you that we will have to dispense with your services." He added, "I assume you would desire to fill out the present payroll period which would permit you to continue until September 30 and that would give you an opportunity to look for some other position in the meantime. Do you desire to do that?" To which the petitioner replied, "No." Then, Mr. Pasman said: "Then I take it you desire your services discontinued as of the present date, is that right?" To which the reply was, "That is right."

In these circumstances, the petitioner ceased to be an employe of the Carrier, and it is contended that she was not, in fact, dismissed, but voluntarily left her employment. We cannot agree with this contention. The hearing was held for the sole purpose of passing on petitioner's status as an employe. In view of her marriage, and that marriage being admitted, and petitioner's knowledge of the Company's policy being also admitted, she was told that her services would have to be dispensed with, but that, if she desired, she could continue to work another week, to the end of the current payroll period. This concession did nothing to affect the basic fact that she was then and there notified that after September 30, she could no longer work for the carrier. Therefore, the Carrier should not be heard to say that what was there done was anything less than to dismiss petitioner from its service, for what it considered good cause, under its policy, which at that time it took the pains to explain.

Another contention of the Carrier is that, had petitioner promptly notified the carrier of her marriage, her application or employment could have been rejected under Rule 50, which provides:

"Applications for employment, if not satisfactory, will be rejected within ninety (90) days after first service, otherwise applicant will be considered accepted, except that application need not be approved until after forty-five (45) days' work has been completed."

If this Rule, properly interpreted, means, as we think it does, that within the prescribed period mentioned therein, the carrier has the absolute right to reject any application, with or without reason other than "not satisfactory," the contention of the carrier is plausible, but loses sight of realities, as applied to this case. The Carrier admits, in effect, that, but for her marriage petitioner would have been retained. It says, "She was a good employe and there were no charges against her otherwise." The ninety days from her first service expired on July 7, 1942, and her application was not rejected. Believing her to be unmarried, the Carrier accepted petitioner as an employe, and her seniority and other rights, under the agreement, existed from that time on. So it is, that if the petitioner had promptly reported her marriage, she would have probably been dismissed, not under terms of Rule 50, but because of her marriage. We do not think petitioner's failure to promptly report her marriage should be permitted to influence our judgment on the important and far-reaching questions which we are called upon to decide.

The first of these questions concerns the right of the Carrier to adopt and follow the policy of not employing married women. That it has that right, we have no doubt. Nothing in the agreement limits, in any way, the right of the Carrier to select its employes. Rule 50, in effect, gives that right.

But once having accepted an employe, married or unmarried, a different proposition is presented. By that acceptance the employe becomes entitled to certain rights under the agreement, among which are seniority rights under Rule 3, and the right not to be dismissed without cause, and without a fair investigation and hearing, as provided by Rule 44. .

Admittedly there is nothing in the agreement which justifies the dismissal of the petitioner by reason of her marriage. That this is true, is attested by the fact that the Carrier, on November 2, 1937, more than one year after the

effective date of the agreement, sought an agreement with the Brotherhood in respect to the company policy as to the employment or retention of married women, which agreement the Brotherhood declined to execute. This declination put the Carrier on notice that the Brotherhood did not choose to approve the Carrier's policy in that regard. Therefore, the right of the Carrier to dismiss the petitioner from its employ must rest on something other than the agreement.

The Carrier states the crucial question in its own submission of this case. It says:

Due recognition of the principles of collective bargaining requires a negative answer to that question, as to all cases where the individual employment contract serves to deprive the employs of some right or benefit accruing to him under the collective agreement. This Board has followed this principle in many cases-Awards Nos. 522, 524, 732, 946 and 1214. The contention of the Carrier in this case is that it has the right to enforce an individual contract with an employs, which deprives that employe of rights which she could have asserted under the collective agreement, had the individual contract not been entered into. If this can be done in cases involving the marriage of a female employe, what prevents it from being done in other cases, and what becomes of the collective agreement?

The case must be decided on the cold legal question presented. If we enter the domain of morals, it may be said that petitioner should have kept her agreement to tender her resignation, but she was not asked to resign. On the other hand we know that had the petitioner substituted the word "No" for "Yes" in her statement made at the time of her employment, she would not have been employed. Assuming that she was anxious for the employment, the very situation with which she was confronted compelled her to make the statement now sought to be used against her. We are not disposed to criticize or condemn either the Carrier or the petitioner.

While, as stated above, the Carrier has the right to select its employes, and may accept or reject any application for employment, within the terms of Rule 50; yet, once an applicant is accepted, or is not rejected within the period prescribed by Rule 50, certain rights accrue to the employe of which he may not be divested through arbitrary action, or other methods not in themselves legal. This raises the question of whether, on grounds of public policy, the contract provision sought to be enforced against the petitioner is legal and enforcible. It only needs to be said that agreements in unreasonable restraint of marriage are universally held to be void or voidable, as against public policy. When, as in this case, a contract is sought to be enforced which, it is contended, gives the Carrier the right to dismiss an employe on the sole ground of her marriage, thus depriving her of employment and other valuable rights appertaining thereto, it is obvious that it tends to create an unreasonable restraint on marriage, and is, therefore, entitled to no force or effect.

For reasons stated above, petitioner's claim will be sustained, but her compensation for time lost will be limited to the difference, if any, between what she would have received had she not been dismissed, and amounts received by her from other employment.

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 petitioner be reinstated in her former position as comptometer operator in the office of the Freight Claim Adjuster, Cleveland, Ohio, with seniority unimpaired, and compensated for loss of wages, retroactive to September 23, 1942, limited to the difference, if any, between the wages she would have earned had she not been dismissed, and amounts received by her from other employment.

AWARD