OPINION OF BOARD: The Petitioner contends that the Carrier violated their Agreement when it augmented its clerical force by hiring outsiders, individuals who had no seniority rights, and used them on an extra basis to relieve regularly assigned employes on their rest day.; and to fill any short temporary vacancies. It further maintains that by the above described action, the Carrier denied the regularly assigned employes and the furloughed employes their rights under the Agreement. In support of its position, the Petitioner points to Rules 1, 7, 8, 11, 19, 27 and-most particularly-45 (f) of the Agreement. It also cites Awards 6259, 6284, 6760 and others that are rather persuasive with respect to the merits of this case.
However, it is the Carrier's position that we are precluded from considering the merits since the Petitioner has failed to comply with essential procedural requirements of Article V of the August 21, 1954, National Agreement. An examination of Article V establishes that an appeal from a disallowed grievance "must be taken within 60 days from receipt of notice of disallowance, and the representative of the Carrier shall be notified in writing within that time of the rejection of his decision." It is apparent from the record that Petitioner did not comply with either of these two requirements. The claims were denied by the General Superintendent by letter dated June 8, 1954, and it was not until April 4, 1955, that the Petitioner appealed from the General Superintendent's decision.
Article V became effective January 1, 1955. It specifically covers the situation where pending claims were filed and ruled upon prior to January 1, 1955 and were awaiting further processing within the appellate framework on the property, for it prescribes that such claims must be appealed within sixty days after the effective date of the into. There is no question, therefore, but that Article V is controlling in the situation now before us and that its time limit requirements have not been complied with by Petitioner.
These requirements are mandatory and afford us little latitude in their application. The only exception provided for is agreement by the parties to extend the prescribed time limits. The Carrier at no time expressly agreed to any such extension and no valid basis is perceived for implying a waiver of the requirement in this case. Nor are we satisfied that Carrier's failure to raise the question over a very considerable period of time on the property or in the record constitutes an estoppel or otherwise covers the failure to comply with Article V. We are of that view, even though we would very much prefer not to base this decision on this tims limit point. We recognize that a dismissal which is not based upon the merits is not entirely satisfactory; it possesses the vice of leaving Claimants with the feeling that they have not had "their day in court." Nevertheless. each of the contracting parties is responsible for the inclusion of this language in the Agreement and what we may think of its wisdom, relative importance or soundness is not at all material. As we pointed out in Award 8564:
Here the Agreement is clear and unambiguous with respect to the immediate point in issue and it is entirely certain that the petitioner has not complied with a plain requirement expressly made essential by a written agreement to which Petitioner is a party.
It is true, as we mentioned before, that the time limit objection was not raised by the Carrier on the property or in the record and indeed not until a considerable period of time had elapsed. However, it is not an ingenious defense that was capable of misleading the Petitioner. On the contrary, it is patently disclosed by the record in this case. The entire record, including the August 21, 1954 National Agreement, is certainly before us and the Carrier may raise this jurisdictional point at any stage in the proceedings. See, among others, Awards 8886, 879 7, 8383.
We have no alternative but to hold that the claim is barred and to dismiss the claim.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing theeron, and upon 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
This Award is in error in concluding that Petitioner failed to comply with Section 1 (b), Article V, August 21, 1954. This erroneous conclusion is based on the false premise that it was apparent from the record that Petitioner did not make an appeal within 60 days from the General Superintendent's notice of disallowance, nor, notify such official that his decision was being rejected.
The facts are that Carrier at no time claimed that the dispute was not properly handled, in accordance with Article V, on the property or in its ex parts submission or briefs presented to the Board. Therefore, this issue was not a part of the dispute that had been submitted to the Board. It was not until panel discussion before the Division, over four years later, that a Carrier Member of the Board raised the question and contended that 9189-_17 940
the "Entire Agreement is before the Board" for consideration and cited some twenty-five Third Division Awards and eleven awards of the First Division. A review of the Awards cited by Carrier shows that only two (Awards 8797, 8886) have sanctioned the introduction of new evidence and issues for the first time before the Board.
It is well settled that the Board will consider all rules and agreements between the parties in reaching a decision, but such rules or agreements must be relevant and pertinent to the issues raised and discussed on the property. Neither the contesting parties, nor, the Members of this Board have the right or authority to present new evidence and thereby create new issues for the first time before the Board. This truism is fully supported by the Railway Labor Act, as amended, rules of procedures (Circular No. 1) of the Board and numerous awards defining the Board's jurisdiction.
A review of the record shows that while the Petitioners supplied "supporting data bearing upon the dispute(s)" in their petition to the Board in accordance with Section 3, First (i), Title 1, of the Railway Labor Act, as amended, Respondent Carrier supplied no supporting data whatever in support of its statement. Therefore, the assumption that Petitioners failed to comply with Article V is drawn, from an exchange of correspondence attached as exhibits to the Employes' Ex Parte Submission. Because such correspondence showed that an appeal was made from the General Superintendent's decision on April 4, 1955, and no exhibit was included showing that he was notified of the rejection of his decision, it was erroneously concluded that Article V had not been complied with.
In order to jump to this erroneous conclusion, it was necessary that it be assumed that there was no agreement between the General Chairman and General Superintendent to extend the time limits, as Section 1(b) provides:
It will be noted that there is nothing in this provision that require: the agreement to be in writing. Therefore, it would only be logical to assume, if we are authorized to speculate as to the facts, that au agreement was made to extend the time limits, in the absence of any evidence to the contrary. Surely, Carrier would have raised the issue on the property in the absence of an agreement. This conclusion is also supported by copies of other correspondence supplied by Petitioners where it is shown that conferences were held with the General Superintendent on December 2, 1954, he denied the claim again on February 25, 1955, referred back to him on March 19, and appealed on April 4, 1955.
It is crystal clear that the Award is based on the assumption that there was no agreement to extend time limits and that the General Superintendent was not notified in writing that his decision was rejected, as there is nothing in the docket to indicate one way or the other. If we were allowed to engage in speculations here, the weight of logical deductions would compel us to assume the contrary in the absence of the issue being raised on the property, where the Employes would have had an opportunity to defend themselves on that issue. 9189-18 941
We do not have to go beyond Third Division Awards in support of the well established doctrine that no new evidence or issues can be introduced for the first time before the Board. See Awards 1219 (Tipton), 1485 (Richards), 3950 5469 5095 5140 (Coffey), 5147 (Boyd), 5227 (Robertson), 5445, 5457, 6024, 6744 (Parker), 6140, 6500, 7036 (Whiting), 6215 (Wenke), 6657 (Wyckoff), 6769 (Shake), 7601 (Cluster), 7848, 7850, 8426, 8685 (Lynch), 8225 (Johnson), 8324 (McCoy), 8411, 8721 (Compare these Awards with Award 8797 by Daugherty), 8484, 8674, 8675 (Vokoun), 8567, 8572, 8573, 8758 (Sempliner), 8693, 8807 (Bailer), 8784 (Bakka), 9102 (Stone), 9029 (Hornbeck).
Award 8807, covered the same issue as presented here. Referee Bailer ruled.
This Award is patently erroneous and clearly a departure from well established principles.
A more detailed memorandum, in support of this dissent, is being placed in the Divisions master file for further reference.
In the Labor Member's dissent to this Award 9189, it is agreed as "well settled that the Board will consider all rules and agreements between the parties in reaching a decision", but it is attempted to restrict such consideration to the extent that "such rules or agreements must be relevant and pertinent to the issues raised and discussed on the property." It is asserted that the time limit provisions of Article V, of the August 21, 1954 National Agreement are not "relevant and pertinent to the issues raised and discussed on the property", and that their application to the facts of this dispute as contained in the parties' submissions, with respect to time limits for appeal and notice of rejection to Carrier officer whose decision is appealed, constitutes new evidence creating new issues for the first time before the Board; also, that such application is by mere assumption or speculation.
Many Board and Court decisions hold to the principle that this Board is vested with the right to determine whether or not it has jurisdiction to resolve a dispute on its merits, e. g., Fee this Division's Award 8886 (McMahon) : 9189-19 942
In Spencer v. Patey, 243 F. 555 it is held that jurisdiction which is lacking cannot be conferred by failure of the parties to raise the question.
In accord with such authorities, this Division ruled in Award 9189 that it lacked jurisdiction to resolve the dispute on its merits because it was invalid when progressed to the Division (See Award 40, of Special Board of Adjustment No. 170-CL v. I. C.-Sharpe)-the dispute had not been properly progressed as required by the provisions of the agreed-upon Time Limit Article V, and based its ruling upon evidence contained in the Employes' submissions that (1) the General Superintendent's June 9, 1954 declination was not appealed within 60 days after January 1, 1955, per Section 2 of Article V; and (2) the General Superintendent was not notified of the rejection of his decision within 60 days after its rendition when appealed from, per Section 1 (b) of Article V. There can be no question but that the Employes' submissions are evidence before the Board, and that they did not show that the General Superintendent had been advised of the rejection of his decision or that the parties had agreed to extend the time limits for further appeal.
It is clear, then, that the Division's ruling is not based on new evidence but, to the contrariwise, on evidence of record before the Division also, that for it to have ruled otherwise its ruling then would have been based on assumption or speculation which was the case in Award 8807 (Bailer) stressed in the Dissent. In Award 6299 (Shake), it is held:
Referee Bailer's outstanding Award 8807 is contrary to his denial Award 8804 rendered on the same date, both in connection with cases wherein in Argument with respect to procedural violations of Article V by Employes was first presented by Carrier Members, and opposed to wellreasoned Awards 8383 (Vokoun), 8564 (Wenton), 8797 (Daugherty), and 8886 (McMahon).
By reason of the foregoing, the undersigned Carrier Members are in accord that this Award 9189 is properly based upon the facts of record considered in light of negotiated rules to which both parties are siguatory, and that the ($ssenting Labor Member is wtihout tenable grounds to now say that it is in er· or.
ANSWER TO CARRIER MEMBERS' REPLY TO DISSENT TO
AWARD 9189, DOCKET CL-8708
In their usual manner, Carrier Members attempt to confuse the issue by dissimulation and citation of irrelevant authorities in support of their argument.
The first paragraph contains a misstatement of fact as I did not assert "that the time. limit provisions of Article V, of the August 21, 1954 National Agreement are not relevant and pertinent to the issues raised and discussed on the property", as a review of my Dissent will clearly show. What I did say, however, was that no rule or agreement, including Article V, could be cmsidered by the Board, unless they were pertinent to the issues raised and discussed by the parties prior to submission of the dispute to the Board.
It will be noted that Carrier Members have injected a new issue into the controversy here by making the misleading statement that many Board and Court decisions hold to the principle that this Board is vested with the right to determine whether or not it has jurisdiction to resolve a dispute on its merits. They only cite two awards of this Board, one court case and one award of Special Board of Adjustment No. 170, in support of their contention.
It is hard to believe that Carrier Members are sincere in their contentions that the jurisdiction of the Board is contingent noon a collective bargaining agreement between the parties. This is the substance of their argument, which is inconsistent with the "Findings" adopted by them in Award 9189, reading:
The National Railroad Adjustment Board was created by Congress upon the adoption of the Railway Labor Act, as amended June 21 1934. The Act clearly defines the jurisdiction of this Division in Section 3, First (h), as follows:
Section 3, First (i), of the Act further clarifies the jurisdiction of the Board as folio:vs:
The Act clearly states that the Board shall have jurisdiction over disputes between certain specified craft or class of employes and carrier, as the term "Carrier" is defined in Section 1, First of the Act. Award 9189 was decided upon a question that was not raised during the handling of the controversy on Carrier's property before submission to the Board. The question was not in dispute between the parties "growing out of grievances or out of the interpretation or application of agreements" as provided in Section 3, First (i) of the Act, supra, consequently, the majority exceeded their authority when they adopted this award, as the Act clearly does not vest jurisdiction within the Board to consider something that is not in dispute between the parties. This is a fundamental question of the Board's jurisdiction that can be raised at any time. Contrary to that contended for by Carrier Members, the fact remains that the Board had no jurisdiction over an issue that was first raised before the Board, thereby creating a dispute instead of resolving an existing dispute between employes and a Carrier, as provided in the Act.
First Division Award 15220, cited by Carrier Members, lends no support to their erroneous conclusions. The question before the Board in this dispute was a fundamental question of jurisdiction of the Board under the Act and did not involve the interpretation or application of the contesting parties agreement, as the Carrier Members would have us believe.
It should also be noted here that Carrier Members in their Dissent to Award 16220 recognized that the National Railroad Adjustment Board's jurisdiction is confined strictly to that conferred upon it by the Railway Labor Act. They said:
It appears that the Carrier Members of the Board are not consistent in their contentions as they take different positions whenever it suits their purpose. Here they are attempting to impress us with the theory that a Member of the Division can create a dispute for the first time, which is over and beyond the jurisdiction conferred by the Act in Section 3, First (h) and (i), supra.
Carrier Members also show a lack of knowledge of the controlling principles involved by citing Award No. 40, Special Board of Adjustment No. 170.
Under the authority conferred by Section 3, Second, of the Act, the Representatives of the Clerks' Organization and the Carrier on the Illinois Central Railroad set up Special Board of Adjustment No. 170, by a collective Agreement, dated November 20, 1966. They agreed, among other things, that certain specified disputes would be withdrawn from the Third Division and referred to this Special Board and that:
The record involved in Award 40 shows that the contention "the dispute had not been properly progressed on the property" was first raised by the Carrier in its rebuttal brief and was a part of the submission of the parties to the Third Division. The situation there involved is clearly distinguishable from the factors presented in Award 9159. First, jurisdiction was confe,red upon S. B. A. No. 170 by an Agreement between the parties and not the Railway Labor Act and, second, the Special Board was given jurisdiction to consider any matter that was contained within the submission that was withdrawn from the Third Division.
Carrier Members exposition of irrelevant and immaterial authorities in support of their conclusions is a discredit to their perception and ability to differentiate between a controlling precedent and one that has no application. It is twice prudent not to quote out of context or ascribe a strained meaning to the language of an authority in support of a person's conclusion. There is no more dismal and fruitless waste of time than to cite authority after authority that have no bearing on the issue under consideration, as was done here in Carrier Members' "Reply". 9189-23 946