Registered Mail Return Receipt Requested

of Traveling Auditor were exempted by the August 27, 1957 agreement. See Carrier's Exhibit No. 1 under heading of Office of Comptroller - "This is understood to include employes in the `Cost Group' and Traveling Auditors."

At this paint General Chairman Adinolfi disclaimed any knowledge of the August 27, 1957 Agreement. After being shown the Agreement Mr. Adinolfi stated that he wished to adjourn the meeting to a later date so he could review his files, and that he would contact the Carrier later and set a date to resume discussion. The next word that Carrier has had concerning this matter was a copy of the letter of April 10, 1970, from Mr. C. L. Dennis, International President of the BRAC, to Mr. S. H. Schulty, Executive Secretary of this Board, of the intention of the BRAG to file ex parts submission with the Third Division of the Board.

(Exhibits not reproduced.)

OPINION OF BOARD: Carrier has refused to notify the named employes that the Organization has given it notice of their non-compliance with the Union Shop Agreement of August 29, 1952.

At the outset Carrier takes the position that the dispute was not handled in the usual manner on the property because, as it alleges, the General Chairman asked fur a recess of a conference with the final Carrier officer and did not reconvene the conference. The Board rejects the contention that a failure to handle the matter on the property in accordance with the applicable provisions of law and the Agreement bas occurred. The Board finds that the matter is properly before it and that it has jurisdiction. Carrier's designated officer had the case before him and had full opportunity to adjust the complaint. A possible misunderstanding concerning a forth" meeting could in no way have prejudiced Carrier's right to notice and opportunity to deal with the substance of the complaint.

The issue here is whether Carrier is required to give notice to employes whom the Organization alleges have not complied with the Union Shop Agreement. Carrier's response is that because the employes are in positions not covered by the Agreement (in its view) such notice is not required and would be improper. The Organization asserts that the final determination of such questions is for the arbitrator appointed under the Union Shop Agreement in the event the parties are unable to reach an adjustment of the matter.

This question has been before the Board before in Awards Nos. 6744, 7085, 16590, .9121, 10693. In No. 6744 the Board said:

" * " - Otherwise stated by refusal to give notice at the involved stage of the proceeding upon the property on the ground relied on Carrier could make other and subsequent terms of the Agreement wholly unoperative. No such incongruous result is contemplated by the Railway Labor Act or by existing provisions of the Union Shop Agreement. On the contrary, and we now include the merits of the controversy, such Agreement in clear and unequivocal terms required Carrier to give the notice requested by the Organization and thereafter follow the procedure outlined by its subsequent terms and provisions. It necessarily follows Carrier's action resulted in a violation of the Agreement and requires a sustaining Award directing it to comply with the Union Shop Agreement by promptly giving the affected employes the notice requested by the Organization on January 13, 1953, and by thereafter proceeding in accord with the express directions of such Agreement."

The decisions referred to above are to the same effect, holding that Carrier's opinion of the merit of the alleged violation cannot control its obligation to determine the matter under the provisions of the Union Shop Agreement. A party not satisfied with Carrier's decision may then implement the Arbitration provision of the Union Shop Agreement. The finial decision on the merits is reserved to the duly appointed arbitrator and Carrier may not frustrate the purpose of the Union Shop Agreement and its arbitration clause by failing to implement the agreed upon procedure.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 was violated.

AWARD

Claims sustained, Carrier is directed to give notice to the employes named, as provided by the Union Shop Agreement.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: E. A. Killeen

Executive Secretary