Section 2 Ninth of the Railway Labor Act provides, as follows:

"Ninth. If any dispute shall arise among a carrier's employes as to who are the representatives of such employes designated and authorized with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employes involved in the dispute, and certify the same to the carrier. * * * *."

Under the provisions of this Act the dispute as to who is representative of the Carriers' employes is one which exists only among employes. No such dispute exists at the present time among Carrier's employes as to whether The Order of Railroad Telegraphers or some other person or organization represents the craft or class of employes known as telegraphers.

By the provisions of the Railway Labor Act, should such dispute arise, the sole authority for its determination is vested in the National Mediation Board. As there exists no dispute to be determined, and as the sole authority to determine such matters is vested in the National Mediation Board, when such a dispute exists, the National Railroad Adjustment Board is without authority at law to determine the second portion of the Employes' claim, and it should be dismissed for want of jurisdiction.

Jurisdiction is the power to declare the law and when it ceases to exist the only function remaining in the Court is that of announcing the fact and dismissing the complaint. Ex Parte McCradle, 74 U. S. 506.

Proceedings in a tribunal without jurisdiction are void-Ex Porte Reed, 100 U. S. 13, 25 L.Ed. 538; Northern Pacific S. S. Co. v. Industrial Accident Commission, 23 F. 2nd 109, and aggrieved party need not seek review, but at any stage may treat them as null and defend against trespass by their use-Northern Pacific S. S. Co. v. Industrial Accident Commission, 23 F. 2d 109.

There being no authority under law for the National Railroad Adjustment Board to hear and determine this matter, sole authority under law to hear and determine such matters being in the Interstate Commerce Commission, the only proper function in this Board is to dismiss this complaint for want of jurisdiction and any other action on the part of the Board will be void and a nullity.

The Carriers respectfully request the Board deny the complaint.

Except as expressly admitted herein, the Carriers deny each and every, all and singular, the allegations of Petitioner's claim, original submission and any and all subsequent pleadings.

All data submitted in support of Carriers' submission, as herein set forth, have been heretofore. submitted to the employes or their duly authorized representatives.

(Exhibits not reproduced).

OPINION OF BOARD: The claim states (1) the occupants of the agency position named in Rule IN are employes as defined in Rule 1(a) and that (2) the General Committee represents the employes occupying the position of agent at the stations named in Rule 1(b) of the Agreement between the parties, effective September 1, 1949.

RULE 1 (a). These rules and working conditions will apply to Agents, Freight Agents, or Ticket Agents, Agent Telegrapher,

Agent Telephoners, Relief Agents, Assistant Agents, where they have charge of station, take the place of or perform the work of an Agent, Telegrapher, Telephone Operators (except Switchboard Operators), Towermen Levermen Tower and Train Director, Block Operators, Staffmen, Operators of mechanical telegraph machines, used for receiving and transmitting messages, Manager Wire Chiefs, Wire Chief Telegraphers, and Car Distributors where the position requires knowledge of the duties of telegrapher or the handling of messages by telephone (synonymous terms), all of whom are hereafter referred to as employes.

(b). The following stations are considered supervisory and are not subject to the rules of the agreement, except Rules 1 and 18:

St. Louis Greenville (Freight) McAlester (Freight)

Kansas City Dallas Denison

Parsons Fort Worth Sherman

Muskogee North Fort Worth Austin

Oklahoma City Wichita Falls Houston

Tulsa Waco San Antonio

RULE 18. Employes covered by these rules who are used in dispatchers' office or who desire promotion to train dispatcher or supervisory agent, not covered by these rules will be given preference over others where ability is sufficient and will retain their rights to their position for six (6) months, and at the expiration of six (6) months their position becomes vacant subject to Rule 2, Paragraph (a). In the event they desire to return to service covered by these rules on their seniority district they may do so after six (6) months, taking their place on the extra list with full seniority.

This claim poses two questions, which must be answered, if possible, by the language of the parties' agreement:

(1) Are occupants of the agency positions named in Rule 1(b) to be considered "employes" within the meaning of that term as used in Rule 1(a), as contended by the Organization, or are they excluded from the designation "employes" and considered to be "officials;" as contended by the Carrier?

(2) Does the General Committee of the Organization represent the occupants of the positions at the stations listed in Rule 1(b)?

Rule 1(a) lists the classification of "Agent" and states that "all of whom are hereafter referred to as employes." We hold that "supervisory agents" come within the general term "Agent." Therefore, the parties have agreed that all Agents are referred to as employes. The significance of such a designation, however, must depend upon what the parties have agreed to with respect to these "employes" as they are specially enumerated in Rule 1(b). By clear and unmistakable language the parties have agreed that only Rules 1 and 18 apply to employes who occupy Agent positions at the stations shown in Rule 1(b). The significance of the term "employes" so far as it relates to those who occupy the positions covered by Rule 1(b), is strictly limited by the language of that rule to whatever benefits are conferred by Rule 18. Only Rules 1 and 18 of the Agreement apply.

Considering the foregoing, we conclude that occupants of the positions of supervisory agent at the staions named in Rule 1(b) are employes insofar as Rule 18 is concerned and the Organization represents them to that same extent.

That both parties to this dispute waived oral hearing thereon;

AWARD