ALB No. k
PROCEEDINGS PURSUANT TO PUBLIC LAW 89-?.x.56

 In the Matter of Issues in Dispute

 between

 Southern Pacific Company

 and

 Switohmenee Union of North America

 Opinion a
 Award

 DETERMINATION OF.QUESTIONS C`ONCERNING ESTABLISHMENT AND
 3tTATUICTION OF UBL s A A s i A~
 ,ER APFUNTHETZ7 -A NEUTRAL BY
 MUM ON

 APPEARANCES:

PUBLIC LAW BOARD N0. 1:





PUBLIC LAW BOARD N0. 3.

Between

Southern Pacific Company

and

Switchraenes Union of North America

OPINION BY NEUTRAL MEMBER MANN


to Introductiono
 The Board convened in Stanford, California on October 25®
 2966, and in Sara Frahaiseog California on December 19p 1966, January fig 9.967 and January AO® 1967 with alb. -members present at all sessions of the Board as follWs

3. Keith Nanny Neutral Xem~era appointed by the
 National Mediation Board
 The persons listed below appeare.d 'b®fore the ' Board ,,made
 statente regarding the question of ineludiaig on the Docket of
 the special board of adjustment certain cases which may involve
 the interests of third parties and, t® tine extent developed
 hereafter, requested or caamenhod upon the provisions in any
 agreement establishing such board which they deemed necessary
 for the protection of third parties:
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                    January 4p1967m A.M.


                        ha-,, George P. Lechners Vice Presidents Order of Railway Conductors and Brakemen

    Mr, Jewell Edgar Teague# Sertretaryn General Grievance

    Committees SP-Pacific Lines*

    Representing Brotherhood of

    Railway Trainmen

    . TartuarY 4.8r 1967, P.M.

      Mr. Robert C® Inman, General Chairmans Railroad Yard

                        masters of North Americas Inc.

                        Mr. John B. Blazfnp General' Secretary-T'i easurera Railroad Yardarasters' of North America. Tnco


Pursuark,. to fblic Law 89-456,. 89th. CongressD HM o 706D June 2U D 19668 Switahmong s Union a$ North America rec,(uested . Southern Pacf is Company to join its'. an 'hgreeuant establishing a special adjustment board to consider arid dispose of a large sumbar of claims pending before the National Railroad*Adjuatment . Boar (hereinafter referred to as NRAB) o?, referable thereto.
 The parties were in agreement with respect $o the basic procedure to be followed by the board and to including in the docket to be submitted to the board approximately taro hundred forty cases whidh had been pending before the NHAB for more than, one gears some for as long as seven years. However, they were unable to agree with regard to certain utters and under the provisions of the Act they requested the appointment of a neutral by the National Mediation Boardo The disputed matters concerned
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the consideration of five cases in which the interest of third parties are allegedly involved. It was the Carriers view that the special adjustment board could not consider these latter five cases unless the agreement setting up the board permitted the entire dispute, including the interests of the third party, to be determined in the same proceedingo The Carrier further contended that in order to bind the third parties such parties had to have notice and full opportunity to appear and present their oases.
 The Union originally took the position that the cases in die= puts did not involve third party interests and therefore did not require special proceedings. St is the Unions contention that in any event all cases that have been pending at the NRAB for more than one year must be brought back for determination by a special adjustment board upon the request of either party, Prom the outset, however., the Switchmen have consented that the underlying agreement provide'that third parties receive notice and be afforded an opportunity to be heard if their interests are found t® be involved when the Board is constituted am hear disputes on their merits.
 Officials of the Order of Railway Conductors and Brakemen, the Railroad Yardmasters of North Americas and the Brotherhood of Railroad Trainmen wrote to this Board expressing their view that the interests of their Unions were involved an the disputed caseso
                                            PL5 No . I

                                            pak


The first two Unions requested the right to appear before this Board and express their views. The third Union requested that the claim of the Switchmen not be considered without provision being first made for the protection of all interested parties. Representatives from each of these Unions were given an opportunity to appear before this "procedural" Board and present their respeotive positions as to what provisions they would wish to be included for the protection of all interested parties if . the disputed cases were docketed.
 Representatives of the Order of Railway Conductors and Brakemen and the Brotherhood of Railroad Trainmen were agreeable to the docketing of cases involving what they consider to be the interests ®f their Unions provided the rules of the Board granted third parties ad4quate notices the right to appear and an opportunity to be heard. They indicated an intention to participate in the proceeding on the merits and to present evidence and argument in support of their claims. The separate presentations by ORCB and BRT Representatives also referred in part to the considerations that leaving cases at the First Division of the NRAB does not solve the problems of delay and running claims and to a preference for having disputes determined by boards on, the property closer to the facts and circumstanoeso
      However, the Representatives of the Railroad Yardmasters of

                                              PL(3 Nb. 1 p o 5


North America took the position that the disputes which involved
 their Union should not be heard. by the special adjustment board.
 They maintained that. under the circumstances, the cases involv
 ing the Yardmasters should be decided only by the appropriate
 Division of the NUB,
 No inference should be or was draamm bpi this Board that these
 helpful discussions constituted consent to joinder in. these pros
 ceedings on the part of the third. party.Organizations appearing*
 During these proceedings the three Members of the Board unani
 mously agreed upon paragraphs l through 6 of the attached proposed,
 Agreement establishing a special adjustment board. Paragrap?3 four
 is of special relevance to so-called "third party disputes.,,

    tyo The Board shall bold hearings on each claim or grievance submitted to it and due notice of the hearings shall be given. The determination that a third. or addi tional party may have an interest in a dispute may sae made by the Beard as constituted with the procedurQI Neutral Member or as constituted with the Neutral Member to consider and dispose of the dispute. Where it is de® termined that a third or additional party may have ors interest in a dispute, such third. or additional party will be given notice of the time arid date the dispute will be heard and an.opportunity to appear before the Board on 'such date and present their case in a manner consistent iiith the procedures adopted by the Boaxtdo The Neutral Member of the Board shall be one 'of the two or more Mom be rs of the Board determinirrg.4hether a notice of hearing

'will be given to third or% sdditioneal parties arid shall be
 ono of. the two ear more members of the Board rendering an
 a4ard in . dispute where notice of hearing has been given
 to,third or additional parts®oo
 With respect, to the problem of consideration of disputes involving
 third party interests, the members of the Board designated by the
 Carrier and Union were in disagreement regarding the inclusion of
 . Pie Ob.l
                                              po 6


paragraph ? of the Carrier's proposed agreement. The paragraph proposed by the Carrier is as follows:

 o No decision shall be randered 3n. a dispute involving -one or more third. parties unless it is re solved completely as to all parties involved. The decision shall interpret each arid every agreement involved ire a manner consistent with each and every other agreement involved. The decision must be binding upon all parties to be valid. A third party shall not be bound by a decision unless it has had notice and an opportunity to appear and present its case era an equal basis with all other parties, There are essentially two basic problems raised by paragraph four on which the Board has reached tentative agreement and by the specific language proposed by the Carrier quoted above. First 3.s the question, of whether or not a special adjustment' board established under Public Law c09-4$6 has authority to bind third partiosa and if sop whether such, powers m~ be .exercised c6nsti~- tutionallyo Second, there is the a_ue'stion of whether os note . assuming third party cases are determined, the special adjustment board oar be ordered in advance to interpret each union-;management eontiiact "in a manner consistent with each and every other agreement involved". A third possible problem raised by the Carrier s proposed paragraph seven, tile requirement of notice and app®x~- tunny to be heard., seems clearly to have. been resolved by the agreed upon paragraph v4 above. 21, Discussion Aa Doeketi~and DisPOsition.of Disputes involving Third Parties, The basic question presented here is whether or not the special
                                            pL(3 No.


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adjustment board established in this agreement may be given power
 to deal with the rights of third partieso If the answer to this
 question is "yes", a statement that third parties will be bound
 by the decision of the Boards as proposed by the Carriers would
 be desirable if not mandatory. There is no reason not to make it
 clear to all concerned that third party interests may be bound if
 consideration of such cases would require this result. Zndeedo
 if a third party is given notice and appears, but is not made
 aware of the intention of the Board to bind him® the notification
 might be insufficient to meet the standards of due process. A
 party who believes he is appearing merely as a witness may prepare
 and present information in a far different manner than ore who comes
 before the Board as a party who may be bound by the decision.
 This brings us to the crucial issue of whether this Board can take and decide these third. party cases, a question which does not appear to have been directly decided under Public Lair 89=456 (gee also federal Register Title 2% Chapier' Xa part 1207),, and which may have far-reaching consequences as to the nature arid forum for adjudication of this type of so-called minor dispute in the railroad industry.
 At the outset it ahsuld.be recognised that when there is a dispute regarding assignment of work presented., a. special adjustment board must either have the power to bind all disputants in a single. proceeding or it cannot consider the dispute at all.
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This conclusion follows directly from Transportation-Communica-
 tion Employees Union vo Union Pacific Railroad Coo, 385U.Sm 157
 (December 5, 1966)9 which held that when presented with a juris=
 dictional dispute under en existing contract the NRAB must join
 the third party union in the proceeding before it anal dispose of
 the entire matter. A special adjustment board to be established
 under Public Law 89-4.56 provides nothing more than an alternative
 forum for disputes which have heretofore gone to the NRABo and is
 intended to alleviate the huge backlog of cases pending before
 the NRAB. That the latter was the intent o£ Public Law 89®456.
 seems clear from the House and Senate Reports ff.Ro 1314.0 ppo 39130
 89th Gong., lst Sesso (1965)3 S.Ro 1201b ppm 1®3s 89th Congox 2nd.
 Bess. (1966). In this sense a special adjustment board is deriva
 tive of the NRAB. Its decisions have the same binding effect and
 are subject to the same limitations on review as those of the NRAB
 itself. H.Ro lllkt, gupra at 160
    The legislative history of Public Lass 89 4#.,56 seem clearly to

indicate that there was no intent on the part of Congress to grant
 a special, adjustment board posers in excess of those which the NMB
 itself can exeroisea It would seem to follow directly from the
 T.~ case that a special adjustment board. does not have the power
 to decide such a case between only two of thm parties, leaving the
 third. party rights to be determined 3.n an independent proceedings
 If Public Law a9-456 is interpreted to prohibit final adjudication
 of rights other than those of,tho carrier and the particular
                                            PL13 Nai


orgmization which. set up the special, board,, the T-9EU ease t-=o11.ld require a holding that the special adjustment board. could.not consider the case at all. Otherwise the special. board. mould have the ,rower to malee determinations which the iWB now has no power to wake& and could thus thwart the Supreme Court^s articulated policy favoring eseditious settlement of the entire dispute, A.
 While Congrassu intent seems obviously not to give special adjustment boards more power than the KtR$ itself, there in little indication that Congress intended special. boards. to have any less power than. the KRA8. The basic justification for establishment of special boards is the fact that there is such a long delay before

    . c.p~ The question of whether or not jurisdictional disputes am

rising under contracts which have voluntary arbitration clauses should be decided. in 2. single proceeding requiring the presence of a third party union has recently been. the subject of considerable debate in legal. periodicalso See ,Tones, Autobiography of $ Decision: The Function of Innovation in Labor Arbitraan.National t©®ders o oinder an nvaV)-,ea erg b sees
 ~ar~s°~aaa~.~u~`d~ ing n.a'taovin~.#.l Parties to a Jurisdic
 tional. Dispute into"77tra"`ou-.~"'Me bM5ious race u_re of a=nal
 8v" -' Leo ''T;o7® ; onese n udgaaag and oven
 thational Steel Arbitration into a Dubious ocedurem 779 'avvo Lo
 even rd essor E gar ones as an a positioxi that
 an arbitrator presented with what is essentially a three party dis
 pute should exert substantial pressure on the contracting union to
 seek. a court. order joining the non-participating anion. Whether or
 not the procedure suggested any Profes6or Jones is sound for the
 situation with othich he was confronted. ire the substantially differ
 ent context of grievance settlement in this industry the Supreme
 Court has construed the Railway Tabor Act to be best effectuated by
 determination of these conflicting claims in a. single brcceedingo
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                                              po 10


an NRAB determination can. be obtained, The need to eliminate delay in cases involving jurisdictional disputes is certainly no less than that in eases involving other disputes over which the special board has power,
 There are two decisionsg Sadler ro Union Ro Gooo 223 Fo suppo 625 (w©D, Pa. 1954)® and Sadler vo union Ro Coo, 125 F. Suppu 912 (W.D. Pa. 195J~-j.?6 which might be cited as indicating that a special adjustment board should not have jurisdiction over disputes involving third parties, The board ins the Sadler cases dyad been set up by voluntary agreement under Railway Labor Act §3 SsnondD and the Court felt that one not a party to the agreement could not be bound by it. The court stressed the fact that there was no mutuality of contract with regard to the third party. In the present case the board is established under express statutory authority& reflecting m, new Congressional policy regarding on.-the-property determination of minor disputes pending befores or referable top the NRABn A special adjustment board will be set up at the request of either party. If., as in the instant case. the parties cannot agree as to rules of procedure,, those matters are to be determined by a Neutral6 Under these circumstances it can hardly be said that the Sadler decisions which, turned on contract lair are controlling. Further mores it is important to note that much of the Sadler opinions was concerned with the fact that the third party had received
 PL6 No.

 pa 11

 inadequate notice of the proceedings anal had no notion that i t could conceivably be bound by theme These latter infirmities would not be present under the procedure to be adopted in the present agreement.
 It is true that the language of Public Lays 89=x.56 could be interpreted as providing that the disputes to be heard by a special board will be between the parties to the agreement only. For example the Act atatesD "Such awards (of the special adjust ment beard) shall be final rind binding upon both parties to the dispute o 0 o" (Emphasis added.), It must be rotede hovrevere that when Public Law 89-x.56 was passed the T-CEO' ease had not been decided. At that time disputes before the NRAB regarding work assignment could, axed normally werem decided between management and only one union even though the other union wood not be bound by the proceeding and could later seek an inconsistent determination. (See the dissenting opinion of Justice Fortes in T=oEcr case; see also 65 Mich Lo Revo 386, 387°388 (1966)0) Thus when Public Law 89-456 was considered Congress had no reason to focus specifically on the problem now before this Boarde
 Furthermores 63 First (m) of the Railway Labor Act provides for awards to be "final and binding ova both parties to the dis= puteo (Emphasis added.) This wording clearly seems to envision only two parties. Yetm the Supreme Court in the T-cEU case did not consider the presence of the word "both" as an obstacle t®
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its decision.. The Court was aware of Public Law 89°!(-56 since
 the majority, In footnote 4. of its opinion, referred., to certain
 changes which the Act had brought abouta Because the statutory
 use of the word "both" posed ago problem in the T®CEU case it
 should not be read to present an obstacle here.
 Legislative history on the question of whether Congress In
 tended special adjustment boards to consider these three=part
 disputes is sparse, Neverthelessg what there is indicates that
 the members of Congress assumed that such disputes would arise
 and be dealt with by special adjustment boards. In the House
 Report it was stated:

      o o o Sores concern. eras expressed during the hearings by witnesses representing the carriers that the mechanism established by the bill could be used by one union fogy the purpose of raiding the membership of another. The committee feels that there is no cause for apprehension on this score, since all persons involved a_-we expected to utilise and apply this legislation in good faith in accordance with its purpose and intent. This weans that neither a union nor a carrier can. properly demand the establishment of a special board with Jurisdiction so broad as to invade the jurisdiction of another union as heretofore customarily respected in the establishment of special boards by voluntary agreement; should any party do so the party upon whom demand is made would be expected.to refuse to agree to such jurisdiction. Such refusal could then force a jurisdictional determination by a neutral designated as provided in, the bill* The neutral, in turn, would be expected to determine the jurisdiction of the board so as not to invade the established jurisdiction of another union., Ii,R. 1114 sBpra at l1.o

      While one way of reading this language would suggest a

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decision against consideration by a special adjustment board of
 cases involving the interests of a thirty party unions a careful ex.
 aminiation of the House hearings and the testimony upon which the
 quoted statement apparently is based indicates that what the Com~
 mittee was concerned with was not eh problem of Jurisdictional
 disputes involving assignment of the work,, but rather the ques
 tion of unions with overlapping memberships competing with each
 other for members by establishing special boards t9 deal with ln-~·
 dividua! claims. The difficulty envisioned is the raiding of mem
 bership because-only the statutory representative can present the
 claim of an employee to its special boards
 kra J, 'E. Wolfe' Chairman of the National. Railway Labor
 Conference, stated, the problem. to one Committees using the fol
 lowing hypothetical situation:

    .,..The Order of Railway Conductors and Brakemen is the duly accradited bargaining agent on railroad A. But 4.0 per cent of the conductors ova railroad A are affilkat;ed with the Brotherhood of Railroad Trainmen. Of course4' this is .hypothetical® but nevertheless. eircumatances just exactly similar to this are prevalent throughout this industry on practically all railroads'. Now, the ORCB, the bargaining agent could request a special board, The carriers ecauld have a mandatory statutory obligation to agrse o e o

    That means that all the claims that the BET is hard 1 ins for their conductor members would have t® go t® the Adjustment Board because the BHT is n®t the statutory bargaining agent for conductors'.

      Nee.t.e ORCB would got expeditious handling of its claims to the great disadvantage of the other organizationo Hearings on H®Pm 701. 704, ?fibs before the Subcommittee on Transportation and Aeronautics of the Committee on Interstate and Foreign Commerce; ?louse of Representatives'. 89th Congrasap ast Sasso $9.96,5) 1990

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When read in light of the problem which was placed before that Committee it is clear that the statement ire the House Report is not intended to prohibit special boards from dealing with juris~- dictional disputes regarding work assignment.. See Note,, 48 Ind.
 170 je 109, 119°1CV (1966), This position is further supported by the fact that the issue vas raised by the carriers,- t-Thon with regard to jurisdictional disputes, have continually pressed for a system requiring a12 such disputes to be determined in, a single action binding all parties affected. See 65 riUcha . LA

 Reeo 386a 388390 (1966)0
 Thus it is.evident that. two strong policies have recently developed which must be taken into consideration in attempting to decide how Public Law 89=456 should be interpreted: first, she legislative intent to cut down the long delay in determinng these labor disputes generallk, and. second., the Supreme Gourtus construction of the Railway Labor Actin the T°=SEi case requiring resolution of Jurisdictional dispute cases in one proceedings These two policies ears only be effectuated in cases involving jurisdiotional- disputes brought before ibis Board by interpreting Public Lava 89-456 to allow this Board to bring all parties , before it and t® decide the rights of all parties in a .single proceeding.
 The only issue which then must be considered is whether there is some constitutional objection to requiring a third party union to join in the proceedings before the Board as constituted
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                                            p. 15


under the agreement, The most frequently raised constitutional question in cases of this type is whether or not the third party had adequate notice of the proceeding and a full opportunity to be heard. C2early® where no notice is given the third party cannot be bound. Hunter vo Atchison T. & S. F. Fly., 171 Fo2d59L, (7th C3ro 1948). As has previously been pointed. out, Paragraph 4. of,the agreement of the.partiezs herein fully provid®s. for notice and opportunity to lie heard.
 A final constitutional problem, and a crucial ones stems from the fact that the third party has no official poser over the selection of the board or the determination of its proce~- dares; and further than one member of the board will be the ropre-n sentati®e of a union at least rival. to the particular dispute and charadterized as a "party" or "partisan" member. (Fed. Peg, Title 298 Ch. Xs part 120701 (a))
 It is obvious that a carrier and a .union- cannot voluntarily set up o, board with powers betiaeen them to adjudicate the rights of third parties, Seep eogoH Edwards vo Capital Airlines,. 176 F.2d 755 (19491, cart. denied, 338 U.S. 885 (1950). Even if the third party has full right to appear and to be heard& the fact that the only members of the board. represent participants in the case. robs the proceeding of objectivity and vendors it void, much in the same easy that a jury iii a courtroom proceeding cannot be composed of relatives of one of. the parties. Ova the other hand,
                                              PL43 N~· f p, 16


if aboard is set up in a manner which preserves objectivity, the
 fact that a party, although appearing at the procedural stage,,
 did not have a vote in the establishment of the board is not
 necessary to its jurisdiction over him,
 In the present ease the rights of third parties in costrom
 verdies before the Board are sought to be protected by that clause
 of paragraph 4 of the agreement providing

 The Neutral Member of the Board shall be one of the two pr more members of the Board determining whether a notice of hearing will be given to third or additional parties and shall be one of the two or more membora'of the Board rendering an. award in a dispute where notice of hearing has been given to third or, additional parties. Under this provision no decision may be rendered adjudicating the rights of thi-Vd parties unless the neutral member of the three:mane board is a ,amber' of the majorityo ' In this respect the case is elparig.distinguishable from Edwards vo Capital Airlines, supra in which there was no neutral member of the panel anal the outside party had no representative on the panel, or a case in which# although a neutral is a merber of the panel® the neutral's vote is not required for a decision as to the third party rights,

 Compare the fact that a court_ for example,, may obtain power over any person who sets foot within the state in which it sits even though the persona does not live in that state and had no power to vote for or against the ,judge or to determine the manner of his selection or the procedures of his court, .Tames, Civil Procedure §12,2 (1965),
                                              JP1- 19 /Va. pa 17


In the latter situation management and the union could combine to defeat the rights of third parties, This problem could not arise under the plan in the instant case, In other words, whenever a third party's interests are at stake the neutral member of the Board controls the decision.
      The case of Arnold vo United Air Lines, Inc. 296 Fo2d 191

(7th Ciro 1961 D, supports the validity of the procedure adopted
 herein, There' the Carrier and the Union each had representatives
 on a special board established under Railway Labor Act, Title Its
 See. 20., pursuant to an agreement which provided for a neutral in the
 case of a deadlock. In order to preserve the rights of a third party,
 the representatives of the Carrier and the Union agreed at the outset
 of the hearing to deadlocks and immediately requested the appointment
 of a neutral to whom they left the decision,. The Court held that the
 procedure met the requirements of ;due process,
 In voluntary industrial, arbitration situations involving a
 third party, tradition and prudence dictates the more conventional
 view that a party can only be bound by consent, moreover, it is the
 practical as well as waatomarg function of grievance adjudication to
 settle disputes, not create them, However,, in evaluating the validity
 and sense of the procedure adopted in this case, one must consider as
 well the alternative method of adjudication were the special adjust
 maent board to fail to take jurisdiction over any cases involving
 asserted third party interests. Such cases would theca have to be decided
 by the NRAB in a single proceeding pursuant to the T-fEU case, Unless
 special procedures are adopted following T-GFU, the NRAB panel which
 would hear such a case
                                            (~Gg No. /


                                              P. 28


would consist of an. equ~il number of representatives from the carriers and the union members selected from the crafts over which the particular division has jurisdiction. No neutral member is required in the absence of a deadlock. Furthers and most significanta is the fact that the structure of the NRAB is such that one of the unions could have a representative on the panel while the other might not due to its classification in a different division.
 Although some writers in criticizing the lower court ins the 'f---CEU case had argued that such a proceeding would be in-
 equitable& o~ 6$ Mich, Lo Rev®a sues at 389®390,, the
 Supreme Court upheld the District Courtss decision. holding that
 joinder of the third party seas required,. Under these circum
 stances it would seem that the procedure to be adopted in the
 instant case is at least as objective with regard to third parties
 as that before the NRAB itselfs and thus is clearly constitutionalo

 With the inclusion of the special provision giving send
 tml the neutral 3n canes involving thirst party rights the situ-
 ation hemb©comes strikingly parallel to implead®r actions under
 Rule 14 of the Federal. Rules of Civil Procedure, Under this rule a
 defendant to an. action can loin a third party whom the defendant
 claims 3s liable for any claims defendant 3.s ordered to pay plain
 tiff. If defendant could not bring in such a third party but had
 to pursue him in an independent action., defendant would be faced
 with the possibility of inconsistent decisions. The federal courts,,
 recognizing the necessity of sash a procedure to protect defendants
 have permitted such third parties to be brought in peen when the
 normal rules of jurisdiction would prohibit defendant from, bringing
 his claim against the third party as an Independent action, 3 PSoorea
 Federal Practice, qlt(.v26o
 - PL 13 iva. J
 po 19
      A possible objection to the special provision adopted. herein

is that Public Law 89-1-ta5b specifically provides: "Any two mem. bers of the board shall be competent to render an award." Although the provision could be read to permit any two members, regardless of whom they represent, to render a decision, thus prohibiting the plan set out in this casein it seems more reasonable to read the words simply to make it clear that unanimity is not, required. Tile ordinary dispute to which this Act was directed is bilateral in character. it is obvioub that if organisation. and , carrier representatives can agree in such cases, the need for the special-wording is eliminated because.there is no need whatsoever for a. neutral. It follows then that Congress wanted to make it clear that the neutral and any one of the parties could decide a dispute, even though the other party representative on the panel did not agrees Finally, the fact that the provision states that any two members are competent to render an award need not necessarily preclude the parties from naming one of the members who must be includedo The provision on which all Members of this Hoard are agreed seems in complete harmony with the intent of Congress,
 Therefore the special adjustment board, under the procedures set out in the agreement, has the statutory and constitutional power to bind third parties in cases where this action is necess ary t® s. complete determination of the rights of the Switchmen's
                                              PL 6 No.1...


                                              po 20


Union and the Southern Pacific Company; hence the agreement should contain the following provision:

          7o Decisions or Awards of.' the Board shall be

final and binding on the parties subject to the pro
 visions of the Railway Labor Act, as amended by
 Public Law 89 °~06o No decision shall be rendered 3.n
 a dispute involving one or more third parties unless
 it is resolved as to all parties Involved. If in, a
 judicial proceeding an award is held not binding 'on
 one or more of the parties to the dispute, including
 third partiest the award shall be deemed not binding
 on any of the parties. Its addition to the notice
 required by paragraph four, copies of the agreement
 establishing this special board of adjustment and
 any accompanying opinions shall be sent dithin tea
 days of execution. to all. parties alleged to have a
 third party interest in docketed aaseso
 This provisionp coupled with the provision requiring the Neutral
 to be one of the majority rendering a decision would a'4 so aglow
 the Neutral to determine that the matter was sash that the special
 board of adjustment should not decide a case because in his vies
 the third party's rights could not adequately be protected.
 Whenever a dispute Involving third parties cannot be determined by
 the Board tinder its agreed males the case would be returned to the
 NRAB for adjudicationo
Bo Inter retatioza of Agreements
 The Carrier proposes that the agreement setting up the
 special adjustment board contain a provision requiring that in
 cases involving third parties "The decision shall interpret each
 and every agreement involved in a mariner consistent with each and
 every other agreement involved." This quoted provision is too
                                              P1, a Na . ~_ p o 21.


broad in its terms, The basic reason for a rule permitting all rights to be determined an a single proceeding is to prohibit two totally inconsistent determinations' botch of which cannot possibly be enforced, Thus, as pointed out in the T-G°EU cases the evil to be eliminated is separate determinations that two unions are each entitled to do the same work, Prior to the T-CEB case the carriers were subject to such conflicting orders and then faced the dilemma of violating one of the orders no matter what they did unless they could renegotiate with one of the unions. see 65 rich o Lo Rev- 389®90 (1966) o The T-CEU case prevented this kind of a conflict, tic the same time the T-CEU case recognised the possibility that that management might ha®e obligated itself £n such a manner that two unions were entitled t® do the same wcok under their contractso The irreconcilable cannot be reeoneiledo In such a case the Court specifi4 caliy stated that the carrier aright be responsible to pap for idleness caused by awarding the work to another union. In other words the contracts between the Carrier and each of the Unions need not, and indeed should not, necessarily be read to be consistent completely with one another, Otherwise the Carrier coup! avoid liability clearly called for by one of its contracts. There fore the clause in question should not be included, It would seem that the T-CEU case properly established the lam in this area and that no provision is required,
 PL 8 No
 111, z~
 11x® AWARD
 10 The following cases shall be included on the Docket ®i° Public Lair Board No, Is a Special Adjustment Board established by the attached agreement:
                    Docket Idol, 37 481

                              38 359

                              39 3?3

                              b.O 619

                              40 743

      2, The.agreement establishing such Board shall include

the following provision:

          Decisions or Awards of the Board shall be . final, and binding on the parties subject to the provisions of the Railway Tabor Mate as amended by Public Law 89-4560. No decision shall be rendered. in a dispute Involving one or more third parties unless it is resolved as to all parties involved, If in a judicial proceeding an award is held not binding on one or more of the parties to the disputes including third partiese the award shall be deemed not binding on any of the parties. In addition to the notice required by clause four, copies of the agreement establishing this special board of adjustment and any accompanying opinions shall be sent within fifteen days of execution to all parties alleged to have a third party interest in docketed cases.


                            /s/ John c~6~.'1%D. Rfos ~aarga

                            I3ldrge


                              L,m Do Bush

                              u~hs


/s/ a"o Keith Mart
 -36- Kerty, ME
 Attachments: Agreement anal ~F7Pi LAW y~7~T ~
 Attachment °°A" PUBLIC BOARD NO, g
 Dated at San Fraiseoa
 California,, this 17th day of March. 1967.