Parties: Order of Railway Conductors and Brakemen
 and
 Elgin, Joliet and Eastern Railway Company
 Issues: (1) May the Organization withdraw from the First
 Division. National Railroad Adjustment Hoard, four
 cases which have boon ponding for more than 12 months
 before said Division, in order to submit them to a
 public law board, in view of the fact that these four
 cases have already been deadlocked by the partisan
 members of the First Division and have been assigned
 to the list of casos to be argued before Referees
 appointed by the National eiediation Board, to sit
 with the mcnbers of the First Division to hear and
 determine the deadlocked cases on their respective
 ' Referee Dockets.
 (2) ray the Carrier withdraw and submit to the same
 public law beard 23 cases which have been pending
 before the First Division. National Railroad Adjust
 ment Board, for more than 12 months, but which are
 currently not assigned to any Referee's deadlocked
 list.
 (3) In the event it is determined that the afora
 _ mentioned cases may be properly withdrawn from the
 ` First Division and submitted to a public law board,
 must the sole record of these cases be the record
 which was submitted to the First Division, and further
 must the presentation of these cases to the public law
 board be governed by the existing rules and regulations
 of the First Division.
 Discussion: The antecedents of this procedural dispute arise from the
 fact that the Carrier on November 17, 1961, discharged an employee represented
 by the Organization. Subsequently, on April 25, 1963, the Organization filed
 with the First Division. National Railroad Adjustment Board, two submissions --

 Dockets Nos. 39 955 and 39 956 and again on.July 25, 1963, filed two additional "
 submissions -- Dockets Nos. NO 211 and 40 212. Those four dockets relate to tie
procedural and substantive aspects of the discharge of t a C1aic&R Csnd are e Pc' PJVED

                                          MAR 8 1968


VICE PREsioP.Nt

MAMA ALA.

                                              'PL,g
                                              tub .+
                                              A4
                                              I


                          _2 _


four dockets which the Organization sco:cs to withdraw from the First Division and have placed on the list of cases of Public Law Board No. 46 for hearing and dotermination.

            On Septomber 14, 1964, the first Division deadlocked on Dockets

Nos. 39 955 and 39 956 and on March 15, 1965. it deadlocked on Dockets Nos. 40211 and 40 212, being unable to secure a majority vote for an award on those cases. On June 21, 1966, the National Mediation Board, at the request of the Members of the First Division, assigned a referee - John Day Larkin -- to sit with the First Division and dispose of a list of deadlocked cases which included
 Dockets Vos. 39 955 and 39 956. By January 1967. Dockets Nos. 40 211 and 40 212
 still had not been assigned to any referee deadlock list, although these cases
 had. been deadlocked by the First Division on March 15, 1965. On January 27, 1967,
 the Carrier wrote the National Mediation Board requesting it to appoint a referee

 to sit with the First Division to hear and render awards on Dockets Nos. 40 211
 and 40 212.
 On January 30, 1967, General Chair Cox, representing the Organization on the property, wrote to the Carrier requesting that; pursuant to Public Law 89-456, it join with him in establishing a special board of adjustment to consider the four cases in issue which had been pending with the National Railroad Adjustment Board for 12 months. The Carrier agreed to discuss this request at a conference scheduled for February 17, 1967. In the interim, the National Mediation Board, on February 9, 1967, replied to the Carrier's letter of January 27, 1967, acknowledging the Carrier's request for the appointment o! a referee to sit with the First Division for the purpose of hearing and determining Dockets Nos. 40 211 and 40 212, and stating that it had requested the Executive Secretary
                                              PL 1;

                                                  No _c~6 I~


of thu Fir::t Divi::lun to furni::h it Lith tl1u chrunolo,Or of thcso two rockets bufore thu 1·'ir::t Division.
 On F cbruary 13, 1067, i'r ~::..id,.nt L.ino of thu Organization wrote the National liediation Board rfyuostin._ it to ustablich a public law board pursuant to Genural Chair:ean Cou's January )Uth rcKjuc=t, and also to designate a Carrier ruprosentative to servo on said public law board.
            At the FebruarJ 17th conf·.rt:nce of the parties they were unable

to come to any mutual undur::tanding either with rurard as to what cases should
 be submitted to the proposed public law board: who should be the neutral member
 of the board, and the rules and regulations which should apply to the govern
 ment of the board. -

 On iiarch 2, 1967, the Carrier wrote the National Kediation Hoard explaining why it was inappropriate for the Mediation Hoard to establish a public law board in view of the fact that Dockets Nos. 39 955 and 39 956 were already on Referee Larkin's deadlock list and that the Carrier Member of the First Division assigned 'to try the cases was ready, although the Organization .Member was not ready to proceed. The Carrier further stated that the riediation Hoard had not assigned a referee to sit with the First Division on Dockets Nos. 40 211 and 40 212, although the First Division had deadlocked on these two cases on i·:arch 15, 1965.
 President Lane on March 6, 1967, wrote to the National "Iedlaticn
 Hoard again repeating his request that the Hoard dcsignate the Carrier t4embor
 of the Public Law Hoard in light of the fact that more than 30 days had olapsod
 since the Organization had m ado its original tcyuost for the establishment of a
 public law board. On April 18, 1')67, the hatior:_l liediation Hoard, pursuant to
                                              pLBo~a. ~b ~di


the Orsanization's raqucat, e:a::bll~a,:u Public Law Board No. 46 and aLo designated Paul H. Verei as the Carrier i:cnL~cr thereof.
 On April 18, 1)67, the ::xccutivo S oeretary of the First Division wrote the National Hediation Board that the Division had deadlocked on a list of 62 cases and requested the Bonrd to appoint a referee to sit with the Division and dispose of these deadlocked cases. Included in this list of the 62 deadlocked cases were Dockets Nos. 40 211 and 40 212. Pursuant to this request, the National Mediation Board on May 8, 1967, appointed Referee riurray i3. Rohman to handle the docket of 62 cases.
 On May 12, 1967, President Lane wrote the National Mediation Board pointing out that Public Law Board No. 46 had been established at the Organization's request and further pursuant to its request, the Carrier Member of the Board had been designated. Hr. Lane further commented that since said Board had been established to consider the disputes involved in Dockets Nos. 39 955. 39 956, 40 211 and 40 212, he was therefore now requesting the Executive Secretary of the First Division to withhold further handling of these aforecited cases pending determination by the Carrier and Organization e.embers of Public Law Board No. 46 of the matters pertaining to the establishment and jurisdiction of said Public Law Board.
          On July 7, 1967, the partisan members of Public Law Board No. 46

met to discuss the ,jurisdiction of said Board, but they were unable to come to any mutual understanding. The Carrier took the firm position that it was opposed to submitting the four dockets in issue to a public law board because these cases were now pending on the deadlocked list of cases given to two certificated referees of the First Division. The Carrier was ui.lling to. submit, to. Public Law Hoard do.
 Pt,3 Po.y6 rqw~ ~ I

                                        ,.

4a a list of ~; c:;::,:a ..::io:W::d .,....r ;:c::jin~ b~fo::: i:u :iret Divi::_or: fur 7? L:onthZ 'act WHIc:: c:,.r , :ot oci a:iy r::fcruu c:cadloc:c lizt or list;: of ca::cz. 'f :o :·°:ti_aa a:_:.:oc:rs did ..,-,:c to comidur the idea of havirv, a procedural neutral apt·ointcd to sit with Public Law Board i:o. 46 to mace the nccescary proced·.Lral dutcrmi--ions in the cvcnt to partic,:n .==bcrs eventually ::ere usable to come: to any common agree::ont.
 On July 14, 1967, the partisan members jointly wrote to the National b:ediation Board requesting that the Aediation Board appoint Dr. Jacob Seidenberg as a Procedural Neutral to resolve the procedural matters upon which they L..1 not been able to reach agreement. On August 9, 1967, toe National F_ediation Board issued a Certificate of Appointment to Dr. Seidenberg designating him as the Neutral Member of Public Lair Board No. 46, to sit with the Xembers of that Board to resolve the procedural matters in issue.
 On November 6, 1967, all three members of Public Law Board convened in the Carriers Office in Chicago and heard argument on November 6-7, 1967, on the several procedural matters in controversy.
 The respective positions of the parties may be sum`rized as follows:

                  Or-n:Lzationls Position

The OrGanization posits its request for having the four dockets in issue heard by the Public La:r Eoard upon the express provisions of Public
 Law E9=*~o (::. R. 706) providing for the establishment of a public law board,

 which --tate: '
 "If a written request is made upon any individual
 _, carrier by a reprczentative of any craft or class
 of c.~loycc.-. of such c.5rricr fur the estab1ish.-.icnt e
 of a special board of adjustment to rccolve sic Autos
                                                ~L (i a- ,(4

                                                        6 ~k


                        _6-


            "otherwise referable to the Adjustment Board, or any dispute which has been pending before the Adjustment Hoard for twelve months from the date the dispute (claim) is received by the Hoard, or if any carrier makes such a request upon any such representative, the carrier or the representative upon whom such a request is made shall join in the agreement establishing such a board within thirty days from the date such a request is made."


            The Organization contends that it has complied with all the '.

necessary requirements of the Statute and it is therefore entitled to have
 its request honored. It notes that: (1) it has made a written request upon
 the Carrier for the establishment of such a board; (2) the cases in issue have
 been before the National Adjustment Hoard for more than 12 months: (3) the
 cases in issue are otherwise referable to the National Adjustment Hoard.
 The Organisation further states that it is immaterial that the four cases have been deadlocked by the First Division and referred to two separate referees, because there is no provision in the above stated Statute which limits its application only to those pending cases before the Adjustment Hoard which have not been deadlocked. The Organization stresses that there has been no argument before the referees on these four cases by Members of the Fist Division; no briefs have been submitted to the referees, and the referees have not seen the Submissions of the parties. In short, the referees in question
 know nothing about the four dockets under consideration other than that they are on their deadlock lists.
 The Organization also contends that there are valid and binding precedents favoring its position. It notes that a similar issue was recently -decided by Public law Hoard No. 35 wherein it was the Carrier (Great Northam Railway Company which sought to have a public law board established to hear 23
 . . . P~ ND. 1(6 Awd I

                        _7_


cases, nine of which had been doadlockcd and assigned to three separate certificated roferees of the First Division. The Organization resisted the Carrier's plea but the Procedural Neutral sustained the Carrier's position in its entirety and included all the deadlocked and pending referee cases on the list of cases that he prepared for submission to the public law board. The Organization insists that it is now entitled to receive the same treatment from this Procedural Neutral that was accorded the Carrier by the Procedural Neutral sitting au! Public Law Board No. 35.
 The Organization denies that Third Division Award No. 14948 has any relevance to the issues before this Procedural Neutral because in that situation the case had already been argued to the Referee and he had distributed his draft award to the partisan parties. It was only after the losing party, having read the draft award, then decided that it wanted to withdraw the case from the Third Division and submit to a public law board. The Organization states that the facts of the present procedural dispute bear no resemblance to the facts surrounding Award No. 14948.
 The Organization also states that it has no objection to the Carrier's request to withdraw 23 cases from the First Division and submit them to this Public Law Board No. 46. It suggests, however, that in light of the National Mediation Board's letter dated February 9. 1967. pertaining to Public Law Board No. 12, which stated:

            "it would not be appropriate to submit additional cases to this (P. L. Board No. 12) Board. The

. parties should complete an agreement which would
 cover the additional cases which they propose to
 have handled. This agreement will then be docketed
 and handled as a new Public Law Board"
 that it would be more appropriate for the Carrier to establish a new public
 law board to handle the aforementioned 23 cases.
                                              ·PL Q No· ~'


The Organization summarizus its position by stating that on the basis of the clear provisions of the cognizant statute and relevant precedents, the Procedural Neutral has no recourse but to honor its request.

                    Carrier's Position

The Carrier maintains that there are two basic reasons why the Procedural Neutral should deny the Organization's request to remove the four dockets in question from the First Division for submission to a public lax board. The first is that the Procedural Neutral has no jurisdiction over these four dockets, and secondly, assuming without conceding that he does have jurisdiction, the Procedural Neutral should not exercise it because of the particular facts and circumstances surroundin.- this case.
 The Carrier states first that the Procedural Neutral has no jurisdiction over these four dockets at the First Division because they are active and current cases. They cannot realistically be considered as being in the backlog of cases at the First Division. The Carrier maintains that the Organi_ zation's request in this matter is materially at variance with the purpose and intent of the Congress in enacting P. L. 89-4.56. The legislative intent underlying the aforesaid legislation was to reduce the existing backlog of cases p~ading at the First and Third Divisions of the National Railroad Adjustment Hoard. However, the four dockets in issue cannot be said to be in the category of the backlog because they have already been assigned to Reforees Larlan and Rohman, who are currently sitting with the hembers of the First Division td dispose of deadlocked cases on thnlr lists: The Carrier specifically ildtes that Referee Larkin has only, 1~ cases reaiinda·; on his Docket and Referee floh= man has only 2j. Included in the rerainin., ca::,:; un the Dodkuts at both thosd
 pt, 9 N n .U(c A` d I

 referees are the four casos in issue. The Carrier states that under these circumstances it is unreasonable to contend that these cases are in the backlog of the First Division because it is possible quickly to proceod to process and finally adjudicate these four cases. It further states that the Carrier :Xembers of the Division are ready and willing to proceed with handling these cases, but the Organization hember of the Division is not.
 The Carrier contends that the backlog of cases to which the Congress was addressing itself, when it enacted P. L. 89-456, was-.those cases at the Divisions which had not been deadlocked or assigned to any certificated referee. The Carrier also notes that the Congress in enacting the 1966 legislation did not disturb S action 3, First (1) of the Railway Labor Act, which permits a party to a dispute pending before the National Adjustment Board to activate the imminent decisional processes of the Board. The 1966 legislation was only an additional means for activating cases at the National Adjustment Board. If the Congress had intended the newly passed Section 3. Second. of the Railway Labor Act to be the sole and exclusive means for activating cases at the National Adjustment Hoard, it would have amended or repealed Section 3, First (1). Its failure to do this is proof positive that it did not want to disturb or interfsre with the cases which were already assigned to Referees sitting with the Divisions.
 The Carrier maintains that the Congress did not use the tens "pending" in its broadest and most literal sense. This is evidenced by the fact that the new legislation provided for the appointment of a procedural referee with broad powers to determine which cases should be considered by the public law board. This vesting of this power in the procedural neutral is clear proof that the literal interpretation which the Organization is here urging is not well founded.

                            y°t-~13 Na. ~f,~ fwd ~

                            -lo-


The Carrier insists that the new legi:aation must be considered not in a vacuum tut in the light of the problem to which the Congress was addressing . itself. The Congress sought by this legislation to assist parties to a dispute who wanted in good faith to rcduce the wdsting backlog. The Congress did not intend this new legislation to be used as a device whereby the parties night be able to "shop around" for another referee once the case had been assigned to a given referee. The Carrier notes that the original draft of H. R. 706 did not contain axr provision for a procedural neutral, bat it was included after Carrier spokesmen urged it upon the legislative committees considering the bill.
 The Carrier further contends that if the organizations position is adopted it will ma'.ce for increased rather than reduced backlogs at the Divisions. It states, for example, that when a case at the First Division is removed from an inactive status, the Members of the Division make a considerable investment of time and effort in reviewing and preparing the case, both before and after it is deadlocked. There is even a greater expenditure of time and effort in preparing the case after it has been placed in the deadlock docket of the Referee. The Carrier maintains that if the organization is permitted to withdraw cases alresdy in the hands of the referee, then the attendant expenditure of time and effort is for naught, and the Division is reduced to the state of just "spinning its wheels," accomplishing nothing..
 The Carrier adds that the organization's position is also condueiva to "referee shopping" and "referee shackling." In the first instance, an interested party rdll be able to withdraw a case from the referee at the Division whenever he believe.^, that the case is not going favorably, perhaps, even as a result of some innocent remark of the referee. In the second instance, the heat
                                            Pt. IS POO '4#~ A(-j d I


th-t a party may be able to td ~hdr;:w a .aL;a from the roferce at any tire could we' : intLibit the rc·f,::oc frnm hrcocin- leis ruosticns at the hearing for fe::r of having- a 0;rt_: rc-;,1ove the cLoe from him.
 The Carrier also state;; that the intend of the Railway Labor Act wa:; to allow the mcu:bers of the National Railroad hdijuctment Board to agree upon a referee anti ?:ailing that, pen^.i t t:ic National Mediation Board `w ap:joint him. The partisan mcnuers of the Division were given one and only one chance to agree u::on a referee, and if thei do not exercise thins op,,ortunity, they are not permitted another "roil of the dice" regarding the selection of a referee, as the Organi:^_tion is now here seokjnC.
 The L;arricr ,^,tatea that there are e:dsting precedents which support its position. In T;:ird Division Award No. 149!,3 the Carrier was not pencitted to withdraw the case ; ending before it before the a;.ard ;.mss fozmdly adopted by the Division. In another case before the Second Division, the Carriers' Conference at the insistence of the Labor Chiefs persuaded the Missouri Pacific Railroad to withdraw its demand to withdraw holiday day pay cases from the docket of a referee sitting with the Second Division who had ruled against this Carrier on the sane issue on the Third Division. The Carrier also cites the Case of Delaware and Hudson RR C=·i,any vs. Uilliams 129F(2) 11 where the Seventh Circuit Court of Appeals struck down a "referee sliopping" attempt by an Organization at the First Division. .
 The Carrier su=arizes its first basic contention that the Procedural Neutral has no jurisc:iction to percit the withdrawal of the four dockets at the First Division be~ause te.^.e csse.. are not in the ;:o;.ture of inactive, unvorked on cases. Trey Pro n,.)t tier ty, a of case envi ~:-onod by the Congress when it enacted P. L. 8')-4~u in 1';&i to rcacdy the -i tuation of a huge atckloC.

            The Carrier advacces the fo1.'o;.:.::L crCiLents in au ?port of its

                                            Pig tia.46 Awcl 1


second basic contcntiin, i.o., c,~:,:. ,.v..n ii t:,.: .:*ucuuur:l Neutral has juri:;diction ovar the four cucc,.L:;. !:,: _::ou7.L; nuL u:: -,_:~z,: that ,jurizdiction. Tae Carrier firzt states that t:;,: C:~_::ni::-lion i.z s~..'tii:.; to delay rather than expedite the final dizpozitivci of to< fr._r cns.:;;. Tnuzc cases are now in a posture at the First Div=.:i_n ::'ac-c troy cculd br- ::r_u,.ri .nd disposed of in the exact order in which t::vy ::~:.: :.::c~ nt the Division. T::c: CMrrier states that

 it is clear that the O:.lzn°_..^ -.`.ir,n : ,._: o: tai First hivi:io.i does not care
 for the tRefereo to w: -in; _oi::: . ... .`',c:;; . 39 x)55 and 39 9_~:: havu eo(z: azsi.ined. It
 is =or this reae::,: t.;.... ..= iz attc:.tin; throe-h the do;_co o: a public lax board
 to secure another rrf ...._. 1:: addit;on t::c Or;anization rlcnbcr is s..~·:.ing to con
 sdlidate all four=~::..;.:; and ar.;14: them as one c.au in order to mi:::.Lizo certain
 procedural defects i_.'.:_.-.:at in the ."our coclcota. The Organization member wants
 to get these four b;c:; o:: tae z:~ore_ty in order to uo able to discard the voluz.
 nous record c^ic:e at t::c :!ational Adjustment Eoz~rd. 3y this means ho is hopeful
 of being able to p-uzc:.: an emircly differ c.^.:, raoord on the property, eliminating
 the decisive procedural nrrjrz no:r contained in t!-.o record.
 The Car:iur ec:p.Lasiz: ;: th :t it .iz nor, sec:cin- to have the Procedural
 Neutral pass on the ro ;.z of the four c%z.::. It only wants th% Procedural Neutral
 to leave tie four cazca at t;:c Fi%:t Division co that the issues presented by the
 Claiwant and his C: c~snizatien :rill be determined in t::o extct order in which they
 hava raised than. Tt:u Carr:zr ;,talc.. :xat it L7~z c~rthin valid defenses to the
 ,four action:;, and it c::ocl; n -)t 'oa duniud t::o opp:~_;.c::it; to advance these defenses
 by the OrGanization b:i.r. -. allo:ad, throu-h invo:cia; the provi sioiss of P. L. 89-456,
 to change its pozition cc -rcct its erro:: z:;s ::..ndlinc; of the four casea~ Since

 the time limits f::; ~:c; ,i:_n- cl-ii-z to th;: ,. ..:wi.^. ion have c::Ared. the

 Organization shoe' 1 r,t t .,.-.;~t_r. ':; invo%. L'.; : r.c::; lac: to ch·-n:;;.s, and rake a
 . PL a N o . 4 cD ayd.

 new record before a public law board, an action which it could not take at the First Division.
 In summary, the Carrier states that the procedural relief which the Organization is seeking should be denied, and the four dockets should be required to remain at the First Division because the basis for the Or-6anization's request is at variance with the fundamental intent and purpose of P. L. 89-1+50. The Carrier further asks that the Procedural Neutral direct the Organization to proceed with the processing of these four cases at the First Division in an expeditious manner, and in the exact order in which they were filed, is order that the dispute be finally adjudicated.

 Opinion and Findings:
 The Procedural Neutral finds that he has Jurisdiction to rule upon the Organization's request to withdraw the four dockets in question from the First Division and to submit them to this public law board, as well as jurisdiction to rule upon the Carrier's request to withdraw 23 cases from the First Division for submission to this same public law board.
 The jurisdiction and authority of a Procedural neutral appointed by the National hediation Hoard in accordance with the provisions of Public Law 89-456 is broad and extensive. Under this Statute he may properly determine pending procedural matters which are necessary to be resolved in order that the public law board might be able to carry out its functions. The legislative intent as to the ,jurisdiction of the Procedural Neutral is clearly evinced in
 Report No. 1114, issued by tha Committee on Interstate and Foreign Commerce, House of Representatives, in reportinE; out H. R. BOG, which in an unchanged for* ultimately became P. L. ES9-J:5ei. This $ofxurt on pz,u 13 states in girt:
                                          Pig No. qCe~ lewd .l.


                        - tlE -


" ..citlior zida may rcqueut the aztionzl r:ediation
 board to appoint a neutral person, who shall con
 stitute a third mc.abar of the 'voard for the nurcose
 of dctrrminim- tha cases which may be eonaiacred ovv
 the do,rd znc 11.1 other auction:: rcauircd in ord5r
 for such a chard to function." underscoring supplied)
 It is thus clear that the Board has the specific authority to determine which
 cases may be referred to a public law board as well. as the general authority
 to determine those procedural questions which must be resolved in order that
 the public law board be able to carry out and to execute its statutory functions.
 When the Procedural Neutral considers the relevant statute and supportin.- evidence of record, juxtaposed against the Organizations request to
 ,withdraw dockets Nos. 39 955, 39 950, 40 211 and 40 212 from the First Dir'.zioa and place them on a list of cases to be considered Public Law Hoard No. 46, it finds that this request is proper under the law, and accordingly, the Carrier's objections thereto are not well founded.
 The record reveals that the Organization made a written request of the Carrier for the establishment of this public law board; that the said public law board was properly established in accordance with the cognizant statute; that the Organization further requested that four dockets be~withdrawn from the First Division, which dockets had been pending there for 12 months; and that the disputes contained in these four dockets are disputes otherwise referable to the First Division. Thus the actions of the Organization were timely and proper and came clearly within the literal provisions of Section 3, SecondL)of the Railway Labor Act which provides that a special board of adjustment established pursuant thereto may hear:

          "any dispute which has been pending before the Adjust-

            ment Board for twelve months from the date the dispute

            (claim) is received by the Hoard."

PCB Nb·4cc ALud. I

 Tho Procccural &cutral i:: unable to fins. nnythin;_ in the rolcvant statute or in f:carin~:s on thus lc,isl:tion bo-uru the buLco:writt_e on Transportation and Ncronautics, Hous,: Co:.·:itt,:c oti T_nt1:1-ctatc arm iorciL7i Co:mrcrce, 89th Congress, First Session, Serial No. 69-1=t, dated June 9, 9 and 15, 1965. and the 5ubco=attec on Labor, ~3enatc Co._:ittco on Labor and 'ublic 'rielfaro, 89th Congress, Second Session, dated ::rch 11, 1966, or in the :teporta i=sued by both the House and Senate Co:a.-.ittces in repo:tiaC; out the cooaizant leZislation that indicate or su~,gest that the Congress in enacting this leGislation made, or intended to t make, a dichotomy betucen pending cases at the National Adjustment Board of core than 12 months duration which were "active" and those which were "inactive." The Carrier's thco:,1 that cases which have been deadlocked and assigned to a referee are now active cases and removed from the operative provisions of Section 3, Second, does not appear to havo any legislative warrant. To hold, as the Carrier urges, that once a case has been deadlocked and placed on a referee's list, it is no 1onser in the backlog of the Division, is an nrnrarranted and in fact an illfounded assumption." The only way a given case may be removed from the backlog of the several divisions of the National Adjustment Board is either for the Divisions to render an award, on the case or for the parties to withdraw the case, or

 since 1966 to remove it from the Division pursuant to the terms of Section 3, Sccond. It must be pointed out that under the procedures of the First Division the fact that a case has been deadlocked and placed on a referee's list does not necessarily mean that the case will ever be heard. The control of the docket of referee cases is vested jointly in the partisan members of the Division and not in the referee. The partisan mc=bcrs jointly determine when a given case or eases on the refcrec's list %ill be ar;;ucd. If one of the partisan member for reasons best kno::n to himzclf does not wish to arCuo a deadlocked case on the referoo's
                                          P L a No. 14 ~ ALA I .


                        - S6 -


list, that case is just as inactive and in the backlog as is a case which was filed today and which has not yet been considered or deadlocked. However,. to repeat, the most important reason for not accepting the Carrier's theory of the case is that there is nothing in the statute or the history surronading it to remotely suggest that the term "pending" as used in the statute excluded cases which had been deadlocked by the partisan members of the Division and assigned to a referee. The only statutory requirements are that the dispute be a dispute referable to the Adjustment Hoard and that it has been before the Adjustment Hoard for 12 months.
 The Procedural Neutral, in construing P. L. 89-456, must take cognizance that the legislation. both by its expressed provisions and purport, was to give parties having cases of 12 months or more duration before the National Railroad Adjustment Hoard the right to seek an alternate forum for the adjudication of the claim or grievance. The Procedural Neutral is accordingly duty bound to interpret this statute with the aim of consummating rather than defeating this legislative objective. To accept the Carriers theory of the purpose of the legislation would require the Procedural Neutracl to take broad liberties with the expressed provisions of the statute, a course of action he is hesitant to pursn~.
 The Procedural Neutral must now tuim to and consider the issue as to whether. despite the literal and articulated term' of the relevant, statute, the Organizations action is so unconscionable and unfair that the prooedural Neutral would be warranted in exercising his broad~dixcretionnot to permit

 the withdrawal of the four dockets from, the First Division;`Oa the record Wore him, the Procedural Neutral finds nothing, in. the, Organization's, actions that
                                          PL Q Nb. 4 wc~. . I


                          17 -


violate or breach any procedural due process vis a vis the Carrier. The record indicates that none of the four dockets has been submitted to the two referees in question. They have not received the submissions of the parties which were prepared on the property. They have not received the briefs prepared hr the members of the First Division. They have not heard any oral or written argument. The Referees in question have no knowledge of the procedural or substantive issues involved in the four dockets. In short, the cases are in exactly the same posture as arty "inactive" case not assigned to a referee. On this record there is no valid basis for the Procedural Neutral to find that any party is being unfairly advantaged or disadvantaged by the removal of the cases from the First Division for submission to this public law board.
 The very cases cited by the Carrier in support of its position illustrate this principle that no unfair advantage to one of the parties should be permitted. For example, in Third Division Award No. 14948, the matter there in issue haJ already been argued to the referee and he had circulated to the parties his draft award when the Carrier then decided to withdraw the case.
 Obviously such a case is no relevant guide for the instant proceeding. In the Delaware and Hudson case, 129 F(2) 11, the Circuit Court of Appeals refused to permit the Organization to withdraw a case from the First Division because the referee, sitting with the Division, had again fully apprised the Members of the Division of his determination of the case before'adoption. This case also bears no resemblance to the facts and circumstances of the instant case here under consideration. The alleged precedents cited by the Carrier buttress the position of the Procedural Neutral rather, than militate against it.

          The Procedural Neutral, in the absence of any substantial competent

                                        P1.3 Na- 'lh . i '


                        _1a-


evidence to show that one of the parties is receiving an unfair procedural
 or substantive advantage, or that one of the parties is being denied basic
 due process, is not inclined to try to ascertain or determine the motives of
 the moving party seeking to exercise his statutory right to remove a case from
 the First Division in order to submit it to a properly constituted public law
 board. `_
            The Procedural Neutral also finds no statutory bar to honoring

the Carrier's request to remove 23 non-referee cases from the First Division
 for the purpose of submitting them to Public Law Board No. 46 for doter$inatioa.
 The objections raised by the Organization based on the ruling handed down by
 -the National Mediation Board on February 9, 1967, on Public Law Board No. 12,
 is inapposite. In that case the parties originally-had voluntarily agreed upon
 the initial list of cases to be submitted to Public Law Board No. 12 and wwe'
 only concerned about a supplemental list of cases. In the instant case, the
 gravamen of the dispute is the matter of the original list of cases to be submitted
 to Public Lax Board No. 46 and it is this very. matter which has had to be given to
 a procedural neutral for resolution. It is in the exercise of his du3,v consti
 tuted responsibilities that he determines that the Carrier's request for the
 withdrawal of the 23 cases from the First Division for original submission to
 this public lax board is proper. -
 The remaining procedural issues before the Procedural Neutral are (1) what shall be or constitute the record of the several cases withdrawn from the First Division and placed before Public Law Board No. 46, and (2) what shall be the order in which those several cases, particularly the four cases being withdrawn by the Organization, shall be argued before Public Lax Board No. 46.

          With regard to the first ifisue, the Procedural Neutral finds that

                                      . ~~ N-o . L4 (D


                        -19-


all the 27 dockets being withdrawn from the First Division in their present form shall constitute the record of the cases to be presented to the public law board. The theory of the parties seeking to withdraw cases from the First Division is that they are seeking a more speedy and expeditious forum, not that they are seeking to change or modify the theory of their causes of action. However. the Procedural Neutral must also take cognizance of an ancillary reason why the parties seek to establish special boards of adjust-' ment, be they statutory or consensual, and that is that the parties want to avail themselves of the flexibility and the informality that inheres in proceedings before special boards of adjustment which do not prevail at the First Division. For example, the right to produce witnesses and supplemental probative evidence. Therefor, Me Procedural Neutral finds that while the records of the several cases -ln't#9.C~R_that they are presently in at the First Division shall constitute.-thr.records of these 27 cases, nevertheless the hearings of the Board shall be conducted in accordance with the rules of procedure govaraing Public Law Board No. 46 as set forth in the attached agreement establishing said, Board, and not in accordance with the rules and procedures of the First Division.

          With regard to the order in which the several cases on the docket


of Public Law Board No. 46 shall be argued, the Procedural Neutral finds that .A
 that is a proper matter for the Chairman and Neutral Member of the Board, either
 selected by the parties or appointed by the National Mediation Hoard, to hear the
 substantive issues, to determine. The Public Law Board when properly constituted
 to carry out or execute its statutory responsibilities should determine the order
 in which it will conduct its appropriate business.
                                        PL a No ~ ~c~ : r~d. ~


                          - 2u -


In compliance with the raalu%--t of the partisan members of thia public law board, made to the Procedural.%eutral at the hearings conducted on November 6-7, 1967, he has drafted and attached to this Award an Agreement establishing a Special Board of Adjustment pursuant to P. L. 89-456, to be known as Public Law Board No. 46, together with a list of cases submitted by both parties, which shall constitute the List of Cases eni to be heard by the said Special Board of Adjustment, referred to as Public Law Board No. 46.

 AWARD: The procedural issues submitted to the Procedural
 Neutral for resolution are herewith disposed of in
 accordance with the above stated Opinion and Findings
 and the attached Agreement Establishing a Special Board
 of Adjustment pursuant to P. L. 89-456.
 Jacob Seidenberg. Procedural Neutral

 Paul H. Yerd, Carrier Member K. Levin, Employee Member

 1

 Chicago, Illinois
 J Memorandum of Paul H. perd, Carrier Member

 I dissent from those portions of the above and foregoing Award No. 1 of Public Law Hoard 46 which would include First Division, National Railroad AdJustaent
Board dockets 39955, 39956, 40211 and 40212 among the disputes or cases over which said Board "shall have jurisdiction.· I concur in the remaining portions of the Award.

                                .rltul .


                            Paul fl. Vend., Carrier Member

                                            p~3 No. H6~


C, ,.:Or:.:1~l~i: Of rl?:'`:.'.i · ~.'~.l`/?,I1 i.i!··: ":, ~i~,it.i_~. `-l .:r ~_ ___. _ lj,,~aY

 n 1, .
 ~.~._r;...:Y ;' .::· Carrlcr; .,~l~i ,.t:, ,~rnlrloyor.. rc;rre:;entcd oy t:he ~iiD~,;? Or' PAIL- .

                          'n~ ~; T11G<.~tl~n).

i:~C;'i, ":Vli l.at:;.::i',i.le;.V (,,lc Grr:~
 .G:~ 'i2: :U?..'J:i:_;:):'' .~:>'..__iI~l:_:JG A :>'c'1;CI:':L >=rG.iitD OF :.L_'CST::iT, _I'1' ISGP,:.·'F.D:
 7. There, anall be established a Special Board of Adjustr.:ent under the provi.~ions of the Railway Labor Act, as amended by P.L. dj-456, whi cii ohail be known as Public Law Board 2?o. 46, here-nafter referred to as thelBoard°.
 2. The Board shall have jurisdiction over the-cases listed in Attachment "A" appended to and made a part hereof this Agreement. The jurisdiction of the Board over the cases listed in Attachment "A" shall e::tend to claims /ad grievances contained in the aforementioned cases arising out of the interpretation and application of agreements covering wages, rules, or working conditions.
 3. The Board shall consist of three (3) members. One shall be selected by the Carrier and known as the "Carrier Member". One shall be selected by the Organization representing the employees and shall be known as tile "Organization Member". The third member shall be a neutral person, unbiased between the parties, and shall be selected in the manner prescribed in paragraph y.. Members of the Board, other than the Chairman, may be changed from time to time, and at any time, by the respective parties designating them.
 4. The Carrier Member and the Organization Member shall meet at a mutually designated location on the line of the Carrier, unless some other place is mutually agreed upon, within 10 days from the execution of this Agreement to select the Neutral Member tof the Board. If the Members of the Board can agree upon the Neutral Member, and the person so selected adcepts the appointment, then the person so selected shall be the Chairman of the Board. If after ten (10) days/from the initial meeting, the Members of the Board are unatile to agree upon the Neutral Member,

                        r '~

                              r ~ >

with er ;~:atxber so oaratoly, or thc: I:Ur.tbcr:; jointly, may re
 queot~ he National I·ediahion board to apcpoint i.iic: P:i:uLral Member: In the ca::e of a vacancy on the Board with regard Lo rite Neutral Member, the vacancy shall be filled ,n the same manner as,t:he original selection or apooinzment was made.
 5. Tile compensation and expenses of the Carrier iie:nber shall be borne by the Carrier. The compensation and -expenses of the Organization Member shall be borne by the Organization. The compensation of the

 I Neu
 ---i Member shall be set aria paid by the National Mediation Board. The Board shall have the authority to employ a secretary and incur other expenses as it deems necessary in the proper conduct of its business. Secretarial and other expenses shall be borne and shared.equally by the Carrier and Organization.
 The Board shall hold hearings on each case submitted to it. At such-hearings the parties may be heard in person, by counsel, or by any other representative they. may elect. The record of the cases listed on Attachment"A" ~--t-,~ey are presently constituted in the archives of the First Division, I·tational iljZoad Adjustment Board, shall constitute the record of the cases. The Board shall have the authority to permit or require the parties to produce additional evidence, either written or oral, as it deems necessary, providing that the additional evidence pertains materially to the issue or issues raised by, or 'presensed in, the record of the case.

 7. The Board shall establish rules of procedure for its government, including the order in which the cases listed on Attach- - merit-'"Ii''v'i11 be presented. The Board shall meet at stated intervals on the line of the Carrier, unless another location is mutually agreed upon,. until 1 t disposes of all. matters listed on Attachment "A",~Stfter
 v`iich i:; s1iall cease to exi

 p W Vet o . 46 Ate- 1

 :a, c;:vc1W .'or the =uraose of rendering intCr p-e i,.At ions of awards as :)rUVI_lli7u for in y73rv.^'iaoh a.
 8. Each ::ember of i.l:c; !soar;: shall have one vote and a majority a:' z:_e Board shall be competent to render an award and make such other rulings and decisions as may to necessary to enable the Loard to execute its des=onated functions. In the event of a dispute arising out of the i:terprezation of an award, the Board, upon the request of either party, and notice to the National Mediation Board, shall reconvene to interpret the award in light of the dispute.
          9. The Board shall make findings ofs,

act and render an award on eac'.^_^_ case submitted to it except with regard to a case withdrawn from the Board. No case shall be withdrawn from the Board after hearing, except by mutual consent of the Carrier and Organization Members. The findings of,-act and award shall be in writing and copies shall be furnfished to each Member. Such awards shall be final and binding on each of the parties to the dispute, and if in favor of the petitioner, shall direct the other party to comply therewith on or before the day named.
 10. The Board shall not have jurisdiction over disputes~aris-0 ing out of requests for changes in rates of pay, rules and agreements,ri~ nor shill it have the authority to change existing agreements governing
 rates of pay, rules or working conditions~.br the right to write new rules.

                          I.

            This Agreement has been made and concluded this ~ of, ,1968, in the City of Chicago, State of Illinois..


For the Order of Railway Conductors and Brakemen e n. Lwin Vice President

 APPROVED:

 ,,.,,Jacob Seidenberg, Procedural Neutral

 For the Elgin, Juliet and
 Eastern Railway Company

 au

Vice President-Personnel

Memorandurn of dissent attached:

ATT!.ca;_~:T
IrAtt

PI-e> Na. -Lit,
To Az;rce:,-n't hete:ocn C,~Elgin, Joliet :1nd L;: ;;tern Railway (the Carr icr) ;;nd the Order of :Railway Conductor.- and Lrakemen (The Orga_:i::c:tion) _;scc.oli:,ai.ng A Special Board of Adjustment, to be known as h,_biic -iLZ%v roard No. 46.

 LIST OF CASES (To Be 'Withdrawn from the First Division, Nation-

 al R;=ilroad Adjustment Board) For Presentation to Public. Law Board No. 46

t.

2.


3.
 4.

5. 6.

7. 8.

9. to. t t.. t2.


    667 36 785 37 3711 37 400 37 438 37 565 37 647 37 648 37 842 37 843 37 929 37 930 37 937

14. 38 822
 15. 38 9t7
 16. 38 912
 17. 39 200
 78. 39 602
 19. 39 955
 20. 39 956
 21. 40 211
 22. 40 272
 23. 40 273
 24. 40 408
 25. 40 856
 26. 40 857
 27. 47, 176
                                          ~>r ND - q ~ A,,4-) C. I


                      M~morand::~r, of ra~.~l I1. Verd, Carrier , .:~.h..~ i

I approve of and agree with the above and foregoing °agr,eemont" establishing hublir Law Board 46 except insofar as it takes jurisdiction over the cases or/disputes First Division, National Railroad Adjustment Board dockets 39955, 39956, 40211 and 40212. I do not believe this Board has jurisdiction over thoaje disputes.

                                i


                        Paul 1-1. Verd, Carrier Mcmber


~1

                  f ~ V' ,. 5~4~,1A ~J .Z J ~=` h . ., :;


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