NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
were reasonably familiar with freight records. In the second place, the special report was work of the nature attached to regular positions handling freight accounts; as a matter of fact, regular assigned employes in the freight bureau worked on the special report during their regular assigned hours. Rule 38(b) contemplates that employes who perform a certain class of work during their regularly assigned hours should be given preference to said work when it is performed on an overtime basis.
In the instant case the situation was handled precisely as provided by Rule 38 (b)-had it been handled otherwise the Employes would have been quick to charge the Carrier with having violated Rule 38(b), This Division, under the Railway Labor Act, is required to give effect to the collective agreement and adjudicate this dispute in accordance therewith. To sustain this claim would require the Board to impose upon the Carrier conditions of employment not provided or contemplated by the Agreement. In view of all the foregoing, we suggest that this Division has no alternative but to render a denial award in this case.
Carrier affirms all data in support of its position has been presented to the other party and made a part of the particular question in dispute.
OPINION OF BOARD: The claim is that the Carrier violated the Agreement between the parties when it permitted junior Employes to perform certain work when senior Employes were qualified and available to perform such work in the Auditor of Revenues Office at Oelwein, Iowa and for compensation to a paid to certain named Employes whose seniority rights are involved in this claim.
The Carrier attacks the jurisdiction of this Board to consider the dispute because no conference was held on the property as required by the Railway Labor Act and the Rules of Procedure of this Board.
Because both sides have aggressively and capably presented their position on this question, because this question has been before this Board many times and because the awards of this Board are in conflict this question will be discussed and ruled on first.
The latest decision of the Third Division which was cited by Claimants is Award Number 10675 dated July 13, 1962 by Referee Robert J. Ables. It is an excellently written opinion and states extremely well some of the aspects of the problem.
.The following are partial quotations from the part of this award devoted to the jurisdiction question.
"The Employes say that the Carriers' view has been rejected so many times that the point ought to be considered as having been settled. This is a matter of opinion. The weight of authority is with the Employes but there is respectable authority to the contrary and there is reason to think that the majority view has not been articulated clearly or on the best grounds.
"As will be seen, Section 2, Sixth deals specifically with disputes considered by this Board. On the other hand, Section 2, Second is more general. It involves 'all disputes' including (perhaps primarily) disputes concerning intended changes in agreements under collective bargaining procedures.
"Truly, it cannot be argued sensibly that the provisions of Section 2, Sixth, which clearly imply that either party must want a conference and request it, do not condition the more unqualified terms of Section 2, Second. It follows from this that the Board is not without jurisdiction if a conference has not been held on the property prior to submission of the claim to the Board.
"So long as common, accepted, ordinary procedures were ob served on the property, including the opportunity for a conference, the Board may conclude that the claim was handled in the usual manner and proceed to consider the claim presented to it. This is the conclusion we adopt in this case." 16852--11 79
"Therefore, this is to advise that it is our desire to dispose of this claim in the Joint Disputes Movement which resulted in the spreading of the strike ballot dated January 30, 1956.
On August S, 1957 notice of intention to file ex parte submission with this Board was filed by Geo. M. Harrison, Grand President of the Organization.
At no time has there been a conference between the Claimants and the Organization with reference to these claims and from the record it appears that the dispute has been handled entirely by correspondence. Therefore the question is squarely before this Board in this case to decide whether the law and the rules require a conference. If the law makes it mandatory that there be a conference before this Board assumes jurisdiction, we are governed by that law.
"First. It shall be the duty of all carriers, their officers, agents, and employes to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employes thereof.
"Second. All disputes between a carrier or carriers and its or their employes shall be considered, and, if possible, decided, with all expedition, in conference between representatives designed and authorized so to confer, respectively, by the carrier or carriers and by the employes thereof interested in the dispute."
"Sixth. In case of a dispute between a carrier or carriers and its or their employes, arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, it shall be the duty of the designated representative or representatives of such carrier or carriers and of such employes, within ten days after the receipt of notice of a desire on the part of either party to confer in respect to such dispute, to spec- 10852-13 gl
Circular No. 1 issued by the National Railroad Adjustment Board entitled "Organization and Certain Rules of Procedure" reads in part as follows:
Section 2, Second is definitely mandatory when it says that all disputes oetween a Carrier and its Employes shall be considered and if possible decided in conference-the rest of the statute appears above.
We think that the language of Section 2, Sixth does not modify the language in Section 2, Second but supplements it and indicates that a conference was intended under the law and implements Section 2, Second by providing a specific method of procedure.
It would appear that equitable reasons have given rise to the reasoning in the many conflicting awards on this subject. Difficult cases sometimes make bad law.
To hold that a conference is not mandatory would not only change the intent of the law but also nullify some of its mandatory provisions. This of course this Board has no power to do.
Conference on the property not having been had this Division is without jurisdiction to consider these claims. They should therefore be dismissed without prejudice.
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 Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
The facts of record here do not show that this matter has been properly progressed to the Board. 10852-14 82