STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Missouri Pacific Lines in Texas and Louisiana, that:
OPINION OF BOARD: This docket is a resubmission of a claim which was before the Division in Docket TE-6126 on which Award 6072 was made on January 30 1953. In that Award the Division did not rule on the merits of the dispute, but instead dismissed the claim without prejudice because notice pursuant to the requirements of Section 3, First (j) of the Railway Labor Act had not been given to the Clerks' Organization.
Petitioner in resubmitting the dispute in the instant docket asks that the Division consider and render an award on the merits of the claim as originally made in Docket TE-6126.
It is necessary to consider two preliminary questions in connection with this case. First, can the Division consider the case in view of the fact that a prior award was rendered concerning this identical case. In other words, is the case now barred because of the principle of rea adjudicate and because of the provisions of Section 3, First (n) of the Railway Labor Act?
Second, is the Division required to give notice to the Clerks' Organization in accordance with the provisions of Section 3 First (j) of the Railway Labor Act?
For all relevant purposes these questions are the same for the instant case as for Docket TE-7748 on which Award 8105 is made this day. Therefore, the discussion of these above stated preliminary questions in Award 8105 is equally applicable here. As in that award, the principle of raa adjudicata applies to the extent that the Division decided that notice must be given to a so-called third party, the Clerks' Organization. We shall not re-decide that. The prior decision stands on that matter.
Nevertheless, it is appropriate to point out that we agree with decision made in Award 6072 to the effect that notice, under the circumstances involved, was a condition precedent to a consideration of the merits. The Referee now sitting has discussed this matter of third party notice to some extent in Award 8022. The views there expressed apply here.
The conclusions reached in Award 6072, 8022 and Award 8105 were dictated by the requirements of Section 3, First (j) of the Railway Labor Act, as construed by the various courts which have considered the matter. Section 3, First (j) places the obligation of giving notice to other parties upon the Board. Therefore, the defect precluding the consideration of the merits at this time is one which the Board has the power and obligation to remedy. Since it is the Board's responsibility to remedy the defect, it is appropriate for the Board to retain jurisdiction, but to defer any action on the merits until such time as it has given notice to the Clerks' Organization in accordance with the requirements of Section 3, First (j) of the Railway Labor Act as interpreted by the courts.
Award 7466 is in particular point in the instant case since it involved a very similar situation where a resubmission was made after a prior award had dismissed the claim because of the failure to give notice.
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
Consideration of and decision on the merits is deferred pending notice by the Division to the parties, Carrier, Order of Railroad Telegraphers, and Brotherhood of Railway Clers, as contemplated by Section 3, First (j) of the Railway Labor Act as interpreted by the Courts.