"Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and the several divisions of the Adjustment Board shall give due notice of all hearings to the employe or employes and the carrier or carriers involved in any disputes submitted to them."

The aforequoted .statute states that notice shall be given to the employe or employes involved. The Division is without power to make a rule not in accord with the provisions of the law. The Courts have held that the rights of an individual cannot be affected unless he has been given notice and an opportunity to be heard.

The award in 1193 was based primarily on Nord v. Griffin, 86 F. 2d 431. The Court enjoined an award of the First Division of the Adjustment Board at the suit of an employe affected who was not given an opportunity to be heard in a case out of which the award had issued. The Court said, in part:

"The trial below and this appeal do not involve the merits of the controversy. They involve solely the question of whether the appellee is to be bound by an order of an administrative board in a proceeding to which he was not a party, entered at a hearing of which he had no notice. The mere statement of the Proposition is conclusive of its unsoundness. The rights of the plaintiff are protected by the Fifth Amendment."

Award 1193, likewise, relies on Estes v. Union Terminal Co., 89 F. 2d 768. This case did not pass on the due process question, but the majority of the Court said that the Amended Railroad Labor Act, fairly construed, requires the Board to give notice to all affected employes.

Awards 371, 844, and 902, cases involving seniority rights, held in substance: In conformity with its rules the Board did not notify the third party of the hearing and over-ruled the objections of the carrier that the Board could not render a proper and lawful award without such notice. To the same effect are Awards 1137 and 1138.

In Award 1193, the Referee quoted from certain parts of the Referee's language in Awards 3'71, 844 and 902, to disclose the view of the Board and Referees, with reference to the seriousness in passing on the rights of a party who was not before the Division. We deem it unnecessary to repeat or detail what was said by the Board and Referees on this subject in Awards 371, 844 and 902, but make the observation that in Award 844, and the Referee's Memorandum attached to Award 902, the Referee's conclusion in Award 1193 with reference to notice, was well warranted.

The Brotherhood cites Award 2253. This Award involved a violation by the carrier of the Clerks' Agreement, by requiring and permitting employes who were not covered by the Clerks' Agreement to perform work that is covered by the Clerks' agreement, and made claim that the carrier be required to assign the work involved in such case to employes who held seniority rights under the Clerks' agreement. The Referee made reference to Award 1193, in the following manner: That the awards cited to the Board with reference to the requirement of notice were, with the exception of one case, cases that involved seniority rights. In speaking of seniority rights the Referee said a different question was involved. There the third person is, in a sense, also a party to the same agreement. His work is covered by the same agreement. The seniority he is claiming accrued under that agreement, and that some courts have held that seniority constitutes a property right which cannot be taken away by a court or an administrative board without complying with the requirements of due process. An award involving seniority necessarily affects all persons under that contract helding seniority dates later than the one changed by the award. Again speaking with reference to Award 1193, the Referee pointed out the Organization submitting the claim was protesting the establishment by the carrier of a seniority date which the Organization contended was some 13 years earlier than the man was entitled to under the agreement. An award favorable to the Organization would necessarily take 13 years off of the man's seniority. Therefore. it was held that notice and an opportunity to be heard were necessary in that case.

The Referee in Award 2253 pointed out that the Referee in 1193 did not consider the reasoning and language used therein applicable to claims of the nature under consideration before the Board in the case being considered. It is evident that the Referee in Award 1193 neither considered that third persons who might be indirectly affected by an award on a claim based on violation of a scope rule were "involved" employes within the meaning of the Railway Labor Act, nor that the requirements of due process made it necessary to give them notice and afford them a hearing. This is evidenced by Awards 1209 and 1210, written by the Referee who wrote Award 1193. Award 2253 did not hold adversely to Award 1193 with reference to requiring notice where seniority rights were involved.

Seniority, insofar as it is a property right, exists only by virtue of a group arrangement or agreement between employes and employers. The very nature of seniority rights in this sense precludes the assumption that they exist at the free will of the employer, or by virtue of individual agreement between an employer and employe. Seniority, if it is a right at all, is a vested interest in a certain specific permutation of individuals. It is a permutation which, barring disciplinary penalties, death, and voluntary withdrawals, can change only by promotions from the top, or by additions at the bottom. It is an interest in a specific orderly arrangement.

In the instant case the Brotherhood is contesting with the Carrier the seniority rights of an employe. The Carrier is nothing more or less than a nominal party to this dispute, and has nothing in particular to gain or lose by the final determination of the dispute. The Carrier is under no obligation to defend this employe's rights with reference to his seniority status. The employe whose seniority rights are disputed, and other employes affected by the result of this dispute, have a direct inerest in the matter. We believe Award 1193 is decisive of the question here presented.

We hold for the reasons given herein: That notice should be given to Cecil G. Murphy, and all other employes involved, of the pendency of this matter; that the matter should be set for hearing on the merits of the controversy; and that Cecil G. Murphy, and all other employes involved, be given an opportunity to appear and be heard.

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 parties waived oral hearing thereon;

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

That notice shall be given in accordance with the Opinion.

AWARD