C:\AWARDS\HTM\PLB46-1.htm

Award No. 1

PU131ZC L*I BOARD ,\'0. 46

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 pending 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 cases to be argued before Referees appointed by the National ciediation Board, to sit with the menbers 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 board 23 cases which have been pending before the First Division, National Railroad Adjust ment Hoard, 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 (3) In the event it is determined that the afore mentioned cases may be properly withdrawn from the ` First Division and submitted to a public law board, ,.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.Juiy 25, 1963, filed two additional ` submissions -- Dockets Nos. 40 211 and 40 212. Those four dockets 'relate to the Blrminghom Snuthem procedural and substantive aspects of the dischai'`e of t e C1aiIIRaxtCand are , e Pv~^f'lVE:D MAR 8 1968 VICE PRESIDENT fAlU1HtD, ALL Award No. 1 PUBUC LOIN HOa30 N0. 46 Parties: Order of Railway Conductors and Brakemen and Elgin, Joliet and Eastern Railway Company Issues: (1) May the Organization vithdrard from the First Division, National Railroad Adjustment Board, four cases which have been pending 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 cases to be argued before Referees appointed by the National Radiation Board, to sit with the members of the First Division to hear and determine the deadlocked cases on their respective ' Referee Dockets. (2) ray the Carrier withdraw and submit .`.o the same public law board 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 afore 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, .4two submissions -- Dockets Nos. 39 955 and 39 956 and again on.July 25, 1963, filed two additional " submissions -- Dockets Nos. 40 211 and 40 212. These four dockets 'relate to the Birminghom Snuthem procedural and substantive aspects of the dischaz``e of t e C1aiCnnd are , e Pe~17)VED MAR 8 1968 VICE PRESIDENj fASUIVD, ALA. ~LQ Pro .y6 I~ of the First Division to iur-:ii::h it i.ith the rehronolo,y of tnezo two dockets before the First Division. On F cbruary 13, 19677, 1'r u~iC,crt i-ina of the Organization wrote the National nediation Board rsquoztirr:_ it to czt.ablizh a public law board pursuant to General Chairman Cox's January j(Jth roqurgt, and also to desi;;nate a Carrier rup-ozcntative to servo on said public law board. At the February 17th conf·.rt:nce of the parties they were unable to come to any mutual undorstanciing either vrith re;;ard 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 larch 2, 1907, the Carrier wrote the National Eediation Hoard explaining crhy it was inappropriate for the biediation Board 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 hember 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 4ediation Board 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 Xarch 15, 1965. President Lane on CSarch 6, 1967, wrote to the National :1edlaticn Board again repeating his request that the Board designate the Carrier Y:embor of the Public Law Hoard in ll.ght of the fact that more than 30 days had olapsod since the Organization had csdo its original request for the establishment of a public law board.On April 18, 1')67, the 1:atioau.1 bicdiation Board, pursuant to Pt- B a~ b~ b, t.~,;~d.1 the Organization's request, e:a::blLsa,:;i Public Law Hoard No. 46 and al-so designated Paul H. Verd as the Car_icr ::caticr thereof. On April 18, 1)67, the -xccutivo Secretary of the First Division wrote the National Mediation Hoard that the Division had deadlocked on a list of 62 cases and requested the Board 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 Hoard on May 8, 1967, appointed Referee riurray R. Rohman to handle the docket of 62 cases. On May 12, 1967, President Lane wrote the National Mediation Board pointing out that Public Law Hoard No. 46 had been established at the Organlzation's request and further pursuant to its request, the Carrier Member of the Board had been designated. Mr. Lane further consented 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 r.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 Hoard, 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 cans a were now pending on the deadlocked list of cases given to, two certificated referees of the First Division. The Carrier was r:i.Lting to. submit, to. Public Law Board sic. , ~~3 P~o.y6 ~~ I 46 a List of .:; c::::,:z ...:i.::: i~::d .._,..: 1;_..~in~ b~f0_-:~ thu -*ir:;t for 1= L:enths bet vhlch :.,.r~ ::ot on any rufuruu e:cadlock l.izt or list;: of cases. Tho ·:_ tiza_ x::::::ourz did ^ , ·cc to comider the id--%a of having a ,procedural neutral apc:ointcd to sit with Public Law Hoard P:o. 46 to mute the necezzarJ procedural dutcr:.ina Lions in the event th o partic= aC:abcrs eventually were unable to come to any com=n agrecc:ont. On July 14, 1967. the partican members jointly trrote to the National ":ediation Board requesting that the idcdiation Hoard appoint Dr. Jacob Seidenberg as a Procedural Neutral to resolve the procedural matters upon which they ;;a3 not been able to roach a;reement. On August 9, 1967, the National Hediation Board issued a Certificate of Appointment to Dr. Seidenberg designatino him as the Neutral Member of Public Lair Board No. 46, to sit with the iIe:bers 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-crized as follo:is: Or-a:i.zationrs Position The Organization posits its request for having the four dockets in issue heard by the Public Lair Board upon the express provisions of Public Law 89 *16 (::. R. 706) providing for the establishment of a public law board, which state: , , "If a written request is made uion any individual carrier by a rcproacntative of any craft or class of a.i-)loycen, of such c.irrier fur the establisb.-.ient e of a special board of adjustment to resolve disputes ~L(i Na°.~(6 AWE. t, -6- "otherwise referable to the Adjustment Board, or any dispute which has aeon 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 Organiaation 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 bean 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 hay* 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 Northern Railway Company) which sought to have a public law board established to hear 23 . p~ ND. (-tfo Awl l _7_ cases, nine of which had been deadlocked and assigned to three separate certificated referees of the First Division. The Organization resisted the Carrier's plea but the Procedural Neutral sustained the Carriers 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 ad 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. )DL~ No·(oa·~·scL1. The Organization summarizes 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 twQ basic reasons wkly the Procedural Neutral should deny the Organization's rcquest to remove the four dockets in question from the First Division for submission to a public law 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 surrounding, 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 Organization's request fn this matter is materially at variance with the purpose and intent of the Congress in enacting P. L. 89-456. The legislative intent underlying the aforesaid legislation was to reduce the existing backlog 'of cases pc:iding 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 Referees Lar:d.n Afid Rohman, who are currently sitting with the hembers of the First Division td dispose of deadlocked cases on th^-it lists: The Carrier spocificaily n6te3 that Referee Larkin has only 1? cases reziind:i,; on his bodket ahd fefefed ftoh= man has only 23. Included in the recainin., 'cao·:r un the I7ookuts 'of both thesi P(. (3 ~V D . ((fc) A-j c~ I referees are the four cases 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 proceed to process and finally adjudicate these four cases. It further states that the Carrier ::embers of the Division are ready and willing to proceed with handling these cases, but the Organization Member 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. 89-455, waVthose 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 Section 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 Board, 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 interfere with the cases which were already assigned to Referees sitting with the Divisions. The Carrier maintains that the Congress did not use the term "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. Thi vesting of this power in the procedural neutral is clear proof that the literal interpretation which the Organization is here urging is not well found. -10- The Carrier insists that the new legi;:lation must be considered not in a vacuum but 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 e.~dsting 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 any 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 make for increased rather than reduced backlogs at the Divisions. It states, for e=mple, that when a case at the First Division is removed from an inacti7e 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 already 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 conducive to "referee shopping' and "referee shackling." In the first instance, an inter ested party id11 be able to withdraw a case from the referee at the Division whenever he believes that the case is not going favorably, perhaps, even as a refer: e. of some innocent remark of the referee. In the second instance, the hat _ PL 6 N~ ·~° A-4 c-. - Li - that a pnrtz- umy be able to ui ~hdr::w a . _-:;e: from the referee at any tire could we' : Inhibit tha ref,:rou frnm t~re::ci.n~ his cuoctiona at the hearing for fe::r of having a orrt.: r(rmove the e~aae from him. The Carrier also state;; that the intend of the Railway Labor Act wan to allow the mcr.bers of the NationLL'. Fnilroad j~djjuotment Board to agree upon a referee anci =:ziAing that, per,.f t tae National I4odiation Board to an:,oint him. The partisan members of the Division were given one and only one chance to agree u;:on a referee, and if the;; do not exercise this op_:ortunity, they are not permitted another "roll of the dice" regarding the selection of a referee, as the Or.anixtion is now here seeking. The Garricr ^tatec that there are existing precedents which support its position. In T%ird Division Awurd No. 149!,3 the Carrier was rot pen:d.tted to withdraw the case ;ending before it before the award was formally 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 cdao had ruled against this Carrier on the same issue on the Third Division. The Carrier also cites the Case of Delaware and Hudson RR CGm·miay vs. llilliams 129F(2) 11 where the Seventh Circuit Court of Appeals struck down a "referee shopping" attempt by an Organization at the First Division. The Carrier su=arizes its first basic contention that the Procedural Neutral has no jurisdiction to permit the withdrawal of the four dockets at the First Division be^ause there case.. are not in the ;;o:.ture of inactive, unsrorked on cases. T1iey or o r.,-)t the ty. a of ca: ;c c:rri !:;on(·id by the ConCre; s when it enacted P. L. V)-456 in 1')Ewi to ramedy the ;:i tuntion of a huge bx:c::log. The Carrier adva:cc~ t:u fol! o; :;g arc,ments in au >port of its P~ g Na . 46 A~d ·! second basic contention, i.e., t.tr;:. ~.v..n ii~ t:r: .:·ucuuural Acutral has Jurisdiction ovar the four ducic_L::, ::.: c;::0U1.~: r:uL u::. r.::~:;,: that ,jurisdiction. The Carrier fir::t states that t:";a ~r,~:~ni.:ation i.s s:.'~i::.; to delay rather than expedite the final disposition 01' thv fn;_r cas.a. Theno cases are now in a posture at tire First i``iv=,;inn ::ic^u tnoy could bc. z:;,yuGi .nd disposed of in the exact order in which Ur~y ::cr.: :::.Lcd at the DJiviL;ion. Th.;.- C::rrier states that it is clear that the O:~anlz.-.tl;·n :·.r.:·.'c::: o_ the First lavi:10.i does not care for the Referee to w: 1m D,;c::. 4,. :;us. 39 95$ ar:d 39 9_~e: have been a.,.a,Tned. It is for this rocs:.: t.:..v. ..c is attc:.c.ting through the dov;co of a public law board to secure another rrr:' ....,.. I:: addition the Organization taabcr is s~.iring to consolidate all four=,:::..t:: and ar,~:~: them as one c.au in order to min'-tize certain procedural defects i:.'.:.::.:nt in th0 :'our dockets. The Organization m 0^bor wants to get these four b ;c ; or the =r opcr ty in order to bo able to discard the voluminous record c:ec at tc National Adjustment ~o;::d. 3y this means ho is hopeful of.being able t0 prosc:.t an entirely dilfercnz. record on the property, eliminating the decisive procedural orrorn now contained in t.-.o record. The C.'arriur c::p::asiz::: that it.iz noc seckin..; to have the Procedural Neutral pass on the rc"=tm 0f the four e::c~::. It only wants th.- Procedural Neutral to leave the four caz;cr at t::c Fir.^a Division zo that the issues presented by the Claimant and his C: ~sn_zatlon will be deter mined in the exact order in which they have raised them. The Carricr ;,talc., ~nat it i.;a e:-^tain valid defenses to the four action, and it c::oc1; .--)t 'oo denied t::%j up~u:t::::ity to advance those defenses by the Organization bcir. -. alloULd, t:rrou,·h in vo:_it1; the provisions of P. L. 89-496, to chan.-e its poritior, .,_ cc -rcct itz- erro::0::a :ndling of the four oasca. Since the time limi,~a f::: .._cc nt:n~ c>>i-:_ t~ ttLc . ~ .ALvln ion have c::pired, the Organization s hoo-i rA t ~.-:y;t_c ':; inv0%: 't'i - r:r:; law to ch.:u,;,; and m3ka a pt.b No.L4(o AL-vA- t _ 13 _ 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 Orz~anization's request is at variance with the fundamental intent and purpose of P. L. 89-450. The Carrier further asks that the Procedural Neutral direct the Or.,anization to proceed with tae processing of these four cases at the First Division in an expeditious manner, and in the exact order in which they were filed, in 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 Mediation 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 Comwerce, House of Representatives, in reporting out H. R. 706, which in an unchanged form ultimately became P. L. 89Js56. This jtopurt on pi.gu 13 states in part: .pig No. q(D Awl., .). _tu_ " ..cithor side may reque::t the rational r:ediation board to appoint a nuutral person, who shall con stitute a third me,.ibor of the board for the ourcose of detcrainin-· the eases which n.1v be conriacr ed by the da.lrd ntid all other aucstions rcouircd in order for such a dolrd to function." (underscoring supplied) It is thus clear that the doard 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 Organization's request to `withdraw dockets Nos. 39 955, 39 9506, 40 211 and 40 212 from the First Division and place them on a list of cases to be consideredby 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 um proper and came clearly within the literal provisions of Section 3. Second,)of the Railway Labor Act which provides that a special board of adjustment establiahod pursuant thereto may bear: "any dispute which has been pending before the Adjustment Board for twelve months from the date the dispute (claim) is roceived by the Hoard." ~Lt3 No.4(o AWd. I Thu Froccdural V;cutral i:: unable to firic anythin. in the relevant statuto or in f:carin~;s on thus ic·;isl:tion bc=ore: the Subcoae:it'.c:e on Tranrportation and Aeronautics, Houso Coe..:,Ltt,:c on l_nt-:estatc and i or ciLn Commerce, 89th Con[:recs, First Session, Serial ::o. 89-14, dated junc 8, 9 and 15, 1965, and the Subcou:aittcc on Labor, jcnatc Co:_nattco on Labor and Public lvielfaro, 89th Congress, Second Session, dated :,:rch 11, 1966, or in the a ports issued by both the House and Senate Cor.>mittees in reporting out the covaizant legislation that indicate or su.-Zest that the Congress in enacting this legislation made, or intended to s make, a dichotomy between pending cases at the National Adjust=ent Hoard of more than 12 sonths duration which were "active" and those which were "inactive." The Carrier's thco:I 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 have 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 'longer in the backlog of the Division, is an urararranted and in fact an illfounded assumption. `The only way a given case may be reaovod from the backlog of the several divisions of the National Adjustment Hoard 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. Second. 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 mill ever be heard. The control of the docket of referee cases is vested jointly in the partisan members of the Division and not i in the referee. The partisan mcrbcrs jointly determine when a given case or eases on the referee's list gill be ar~ucd. If one of the partisan members for rcazons best kno:m to himself does not with to argue a deadlocked caso on the referee's ~La PC> . ~~O Awc~,,l . - 16 - list, that case is just as inactive and in the backlog as is a case which wags 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 surrounding it to remote1p 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 as alternate forum for the adjudLcatioa 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 Carrier's theory of the purpose of the legislation would require the Procedural Neutrwl to take broad liberties with the expressed provisions of the statute, a course of action he is hesitant to porsu o. The Procedural Neutral must now turn to and consider the issue as to whether, despite the literal and articulated terms of the relevant.atatute, the Organization's action is so unconscionable and unfair that the Procedural Neutral would be warranted in exercising his broad discretion not to peradt the withdrawal of the four dockets from, the First Division ; ` On the, records before him, the Procedural Neutral finds .nothing in_the,Organizatioa~s actions that ' PL Q Nb- 4~ ~d. I _1 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 preparedly 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 any "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, L,9 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 tdembers 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 arty substantial competent P,3 Na. 146 . ~ - -. 1B - 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 lax. board. i 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 Lax Board No. 46 for determination. 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 wary' 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 Law 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 duly con3ti 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 law 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 with drawn by the Organization, shall be argued before Public Law Board No. 46. .t With regard to the first iAsue, the Procedural Neutral finds that - 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 taste cognizance of an ancillary reason why the parties seek to establish special boards of adjustment, be they statutory or consensual, and that is that the parties want to avail themselves of the Clexibillty 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. Thor®for'f. a Procedural Neutral finds that while the records of the several casesln'ttAhat they are presently in at the First Division shall constituto..the·,records of these 27 cases, nevertheless the hearing of the Board shall be conducted in accordance with the rules of procedure governing Public Law Board No. 46 as set forth in the attached agreement establishing said, Board,.axxl 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 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 Board, to hear the substantive issues, to determine. The Public Lau Board when properly constituted A to carry out or execute its statutory responsibilities should determine the order in which it will conduct its appropriate business. pc.Q No~t(: rye. - 20 - In compliance with the request of the partisan members of thia public lax board, made to the Procedural Neutral 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 ani to be heard by the said Special Board of Adjustment, referred to as Public Lax 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+$6. Jacob Seidenberg. Procedural Neutral Y. Paul H. Yerd, Carrier Member K. Levin, Employee Member i Chicago, Illinois Memorandum of Paul H. Perd, Carrier Member I dissent from those portions of the above and foregoing Award No. 1 of public Lava Board !,6 which would include First Division, National Railroad Adjustment Board dockets 39955, 39956, 40'11 and 40212 among the disputes or cases over which said Board "shall have jurisdiction." I concur in the remaining portions of the Award. lectC . ~ ~~ Paul it. Yerd, Carrier Member . (p(. ~3 N ~.-l (o n , . ..~ :~1?`::1Ii111_ of . ,r~.'i`, .. ' ~,:I,l'1.:.':; i,i:i. :: ~~i~i.i_~f . i .:.e:N'- __, _ i--.' . - .r,. vu~W:',.:~ ~: u· 1:.1fr1Cr. J iMti 1. t:. ,;PtfnlO;jei·:. ;'CyfC:.:Cnl:C:7 :.y 1,he 0; D-,' Of RAIL- ~i~t`_ l.>_i~'va~'i'L.;-;N 'viii) 1:.1~:~.:.~i~IL.1~ (Thi: Ofganizotion). ~Ji; 'iii11. -UTZI-J:ii~ O:' ....,...~L,I'::'iNG A Sl=EClAL LOARD OP :.D_USTXINT, 1'f is ;,GP~,IrD: 1. There.snsil be established a Special Board of Adjustment under the provisions of the Railway Labor Act, as a:-,,ended by P.L. 8G-456, 1':hicil ahail be known as Public Law Board ;10. 46, here_nafter referred to as the"Board". 2. The Board shall have jurisdiction over the-cases listed in Attachmen_ "All appended to and made a part hereof this Agreement. The Jurisdiction of the Board over the cases listed in Attachment "A" shall extend to claims and grievances contained in the afore -entioned 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 the "Organization Member". The third member shall be a neutral person, unbiased between the parties, and shall be selected in the manner prescribed in paragraph 4. 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 Iof the Board.' If the Members of the Board car, agree upon the Neutral Member, and the person so selected accepts the appointment, then the person sq selected shall be the Chairman of the Board. If after ten (10) dayslfrom the initial meeting, the Members of the Board are unatile to agree upon the Neutral Member, Q~r~ N~.~. i - c - f eit-or i'.omber soJ-rately, or- ti:e I·;Lmbers jointly, may requeot'the'Nation '_;1 ::edialtion Board 'to a_;)yoint U)o -i:uutral Member., In the ca:;e of -a vacancy or. the Board with regard to the Neutral Nemiber, the vacancy shall be filled in the same manner as the original selection or -pro_JnT;merLt was made. 5. The compensation and expenses of the Carrier Xe:mber shall be borne by the Carrier. The compensation) and expenses of the Organization Member shall be borne by the Organization. The cordpensation of the Neutral Member shall be set anti 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. '-` --6. The Board shall'. hold hearings on each case submitted to it. At.such__hearinFs 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" ashy are presently constituted in the arch ives of the First Division, National il~oad 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-pre- -.. sented 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-, men t--fiA" will be presented. The Board shall meet at stated intervals . or the line of the Carrier, unless-another location is mutually agreed upon,, until it disposes of ail. matters listed on Attachment "A", after .. : :~ PL r~ ~lo. 4,6 A~L which io shall cease to exist, cxcoE,t for the pur&,ose of rendering in-. ter _~r a tnzions of awards as _)ruvidod for in para.;raph $. 8. Each ::ember of i;ho agar c: shall have one vote and a ma jor- ity of .e Board shall be competent to render an award and make such other rulins and decisions as may be necessary to enable the Board to execute its designated functions. In the event of a dispute arising out of the interzrezation 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 of act and render an award a on each case submitted to it except with regard to a case withdrawn from the Board. No case shall be withdrawn from the Board after hearing, ex- ' - cept by mutual consent of the Carrier and Organization Members. The findings of ;act and award shall be in writing and copies shall be furnl fished 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=4 Ing out of requests for changes in rates of pay, rules and agreements, -a,~.. '~= nor shall it have the authority to change existing agreements governing rates of pay, rules or working conditionsthr the right to write new rules.--- This Agreement has been made and colicluded this of 1968, in the City of Chicago, State of Illinois - . For the Order o Railway Conductors For th,e Elgin, Joliet and and Brakem'a Easte n Railway Company o ' In- Paul E. Verd ---- - Vice President Vice President-Personnel Memorandum of dissent attached:--,_ APPROVED: _-, ·i . Jacob Se;dnn erg Procedura Neutral- ~ __~ pc.lb Nw .~G6 ~~.f rii.ir,i. .,.,~"A" rii.1..U.~i:.u..r To Az"roc:ent betereen t;ie Elgin, Joiiot and Eastern Railvray (t'r.a Carrier) c:nd the Order of Railway Conductors and Brakemen (The Orga-izotion) `~stubli::,liin~; A Special !Board of Adjustment, to be 'rnovrr_ as P::Siic ilavi 1;oard No. 46. LIST OE CASES (To Be Withdrawn from the First Division, National Rz:ilroad Adjustment Beard) For Presentation to Public, Law Board No. 46 1. 36 667 2. 36 785 3. 37 37q 4. 37 400 _ 5. 37 438 i 6. 37 565 7. 37 647 8. 37 648 I 9- 37 842 10. 37 843 ' 1 1·. 37 929 12. 37 930 . 13. 37 931 _. - 14. 38 822 . - 15. 38 911 16. 38 912 17. 39 200 18. 39 602- - ~_ - 19 . 39 955 _ 20. 39 956 21. 40 211 - 22. 40 212 .: 23. 40 273 24. 40 408 . 25. 40 856 26. 40 857 27. 41, 176 .. y F .. Y Memorandum of Paul 11. Verd,,Carrier ,.:.amber f I I approve of and agree with the above and foregoing 11ugxeLlnont11 establishing public 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 tho-6e disputes. . Paul H. Verd, Carrier Member