"Attention is directed to page 16 of this record whereat Carrier raises the following jurisdictional issue: Does the mere serving of notice of intent to file an ex parte submission-which notice is required by Circular 1, the published rules of this Board onstitute institution of proceedings before this Board?

"The reso)vement of this issue is necessary because of the provisions contained in Article V, Section (c) of the 1954 National Agreement, the same Agreement which we are requested to apply in a resolving of the merits of this dispute. This Article provides that all claims or grievances involved in a decision by the highest designated officer shall be barred unless within nine months from the date of said officer's decision proceedings are instituted by the employe or his duly authorized representative before the appropriate division of this Board unless extended by agreement." (Emphasis theirs.)

"It is our position that the time limit rule of the August 21, 1954 agreement requires that appeals must actually be received by your Division within the time limit specified, and that a `notice of intention' does not stop the operation of the time limit rule."

Carrier's argument continues:

"For example, a petition which includes a statement of the claim but does not include a statement of facts, etc., is not the type of petition contemplated by Section 3, First (i) of the Act. Consequently, the filing of a notice does not, in and of itself, institute proceedings before this Board. Expressed otherwise, because no other method for referring a dispute to this Board is contemplated by the Act itself it is only proper to assume that nothing less than what is prescribed therein will afford full compliance with this provision."

"The disputes " * * 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 disputes 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."

The pertinent portion of Article V, Section 1(c) of the National Agreement of August 21, 1954 is as follows:

"All claims or grievances involved in a decision by the highest designated officer shall be barred unless within 9 months from the date of said officer's decision proceedings are instituted by the employs or his duly authorized representative before the appropriate division of the National Railroad Adjustment Board * * * as provided in Section 3 Second of the Railway Labor Act. It is understood, however, that the parties may by agreement in any particular case extend te 9 months' period herein referred to."

Organization, on the other hand, argues its notice of intent to file an ex parts submission, filed as Carrier concedes within the 9 months' limit met the requirements of the Agreement.

Organization, like Carrier, cites numerous Awards of the several Divisions of the National Railroad Adjustment Board, and material from other sources which each believes supports its respective position.

We have, then, before us Article V, Section 1(c) of the applicable Agreement ("proceeding are instituted") and Section 3 First (i) of the Railway Labor Act ("disputes may be referred by petition * * * with a full statement of the facts and all supporting data bearing upon the disputes.").

Under the Act, it is the "dispute" which is referred, and is primary, "with a full statement of the facts". But the law does not say that the "dispute" and the "full statement of the facts and all supporting data" must be filed together, at the same time. In fact, the Law merely says the "disputes" and the "facts" may be referred.

Circular 1 of the National Railroad Adjustment Board entitled "Organization and Certain Rules of Procedure" merely quotes from the Act, as above, and then adds:

"The petitioner will serve written notice upon the appropriate Division * * * of intention to file an ex parte submission on a certain date (thirty days hence) and at the same time provide the other party with copy of such notice."

But the Agreement of the parties provides that "all claims * * * shall be barred unless within 9 months * * * proceedings are instituted by the employs or his duly authorized representative before the appropriate division of the National Railroad Adjustment Board * * *."

Actually the Act itself and Circular No. 1 say that the "dispute" may be referred by petition. The dispute in this case, which is Organization's claim, is fully stated in Organization's letter of November 23, 1955, being its notice of intent to file within 30 days an ex parts statement covering the dispute. Thus did Organization refer, by petition to this Board, its stated dispute. And Carrier concedes this was done within the required nine months.

Carrier Members, in argument before the Referee, offered in evidence a dissent filed by Carrier Members to Award 7813, this Division, wherein such Carrier Members quote from a response made by the National Railroad Adjustment Board, Chairman Charles J. McGowan and Vice Chairman E. W. Fowler to an inquiry from the Attorney General of the United States wherein the Board said:

`The written submissions alone invoke the official action of the Board."

But the question before us turns on the phrase "proceedings are instituted".

"Proceedings" is defined by Webster as acts, measures or steps in a course of business or conduct.

"Instituted" is defined' as initiated, set up, set on foot- in plainer English, started or begun.

Carrier's argument and evidence to the contrary, we must and do conclude that by its letter dated November 23, 1955, citing the dispute at issue and serving notice of its intent to file an ex parts submission covering the dispute within 30 days, the Organization "instituted proceedings" within the meaning of Article V, Section 1(c) of the applicable agreement.

We have another objection raised by Carrier with relation to Article V, Section 1(a) It is Carrier's position this section was intended "to bar claims made on behalf of unnamed claimants, as in the instant case."

However, because Carrier did not raise the issue while the dispute was being handled on the property, it cannot do so now.

Insofar as the merits of the case are concerned, it is conceded on behalf of Carrier that the Agreement "specifically grants `weekly and monthly rated employes, whose rates contemplate more than five days of service each week, vacations of one, two or three work weeks."'

The case turns on the point of whether claimants here involved are monthly rated employes "whose rates contemplate more than five days of service each week".

Organization asserts Rule 76-"Monthly Rated Employes"-of the Agreement, revised effective September 1, 1949 to conform to the 40-hour week principles, "makes it clear and undisputed that a monthly rated employe has a six-day work week".

Rule 76 gives monthly rated employes "one regular rest day per week, Sunday if possible".

Rule 76 fixes a formula for computation of pay for such employes"313 calendar days per year"-which establishes they are paid for six days per week.

Rule 76 also states that "ordinary maintenance or construction work not required on Sunday prior to September 1 1949 will not be required on the sixth day of the work week." (Emphasis added)

Article 1, Section 1(d) of the August 21, 1954 National Agreement provides:

"Paragraphs (a), (b) and (c) hereof shall be construed to grant to weekly and monthly rated employes, whose rates contemplate more than five days of service each week, vacations of one, two or three work weeks.

The several presentments of and on behalf of Carrier, as well as the numerous Awards it cites, have been carefully reviewed. Our opinion is Organization's case has been proven conclusively by the Agreement itself, above quoted; claimants are paid for and operate on the basis of a six day work week.

We cannot, however, agree to wholly sustain part (b) of Organization's claim as made. Conceivably, these men received their full monthly pay while on vacation. We will therefore remand part (b) of the claim to the parties for such monetary adjustments, if any, as may be necessary to comply with our opinion and award sustaining part (a) of the claim.

FINDINGS; The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and uon 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

That the Agreement has been violated.

AWARD