PROCEEDINGS Pp8LTf)NT_TO PUBLIC LAW 89-456

Matter of

 BROTHERHOOD OF RAILROAD TRAINMEN

 and

Opinion and Award

 OPINION ADP? AWARD ON THE JURISDICTION OF
 PUBLIC LAW BOARD. No. 87



Special Board of Adjustment to hear a docket of listed cases
 x. arising on the Boston, and Maine Railroad. The Organization 8xtd.'y,: Carrier were unable to agree on questions relating to the juzj,s.. " diction and establishment of the proposed board, which became known as Public Law Board No. 87. In accordance with the st&tktte

the undersigned was designated as the Procedural Neutral Member"."

 The Procedural Neutral met with J_I,. Scanlan, representing,y :-K the organization, and W.J. Ahearne, representing the carrier, agt_;`% October 31 and November 1, 1967, and January 4 and 5, 1968. Each was afforded full opportunity to canvas all issues concornr ing the jurisdiction and establishment of the Board. Each aloo
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    The determinations of the Procedural Neutral are being _


x
 porated in an agreement establishing Public Law Board ft. $'~,

 None requires elaboration in a written opinion except the ju7r~6
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dictional issues that the Carrier raised concerning Cla~:ms

 Ir-8566-A, T-8728, T-8730, T-8770, and T-8918.

                  :: F

                  CLAIM T-8566-A

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      Claim T-8566-A is a typical third party claim in the seTa0e..that it results from work being assigned to employees repreeentE41,


by other labor organizations, which work BRT claims should htavq;:'·r··~ ;
 ,y,
be®ll assigned to an employee in the classification it rspTpbept6to."~,
on August 14 1967

 submitted a brief on the jurisdiction
 Thus, Trainman J.J. Reilly seeks one day's pay because the tower
 man at the Billerica shop was used on his day of rest to throw
 hand-thrown cross-over switches when a single track operation was
 in effect. BRT took the positi.)n that this was work belonging'
 to the craft or class of trainmen. B&M argued that the use of an .
 employee from the Telegraphers craft was.correct. Manifestly both ':.:,>,
 organizations, and both crafts or classes of employees, have an '1

 interest in the dispute. A ruling that bound only one would ,-,';

 leave the carrier vulnerable to the other,

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Prior to the decision of the Supreme Court of the United States in Transportation-Communication Em lovees Union v. Union Pacific R. Co., 385 U.S. 157, the practice of the National Railroad Adjustment Board in work assignment disputes was to rule upon the claim of each organization without regard to the merits.. '`r~ of the claim of the other, H Public Law Board could perform this function: and therefore, prior to the TT-CEU case, the propriety of having a Public Law Board decide these cases instead of NRAB`

 would have been beyond question. '_'
 In T-CEU, however, the Supreme court held that NRAB has both the power and the duty to render decisions binding both crafts and organizations in work assignment disputes. The carrier, the Court held, has a right to, such a determination. if a Public Iaas: Board can render an equally effective decision in a third party -' ,. case; there is no reason that Public Law Board No. 87 should not hear these particular cases. But if a Public Law Board cannot render a decision binding all parties, then it should not consider the claims at all, A partial decision would be a.throw-bac to the old procedure which the Supreme Court held to be contrary to the interests of the carrier, the employees, and the public,
 The critical question, then, is whether Public Law Board No. 87 can render a fair and binding decision conclusive of the rights of both parties to these work assignment disputes, In our opinion, although the question is debatable, a Public Law Board lacks that power, and therefore should leave such questions to NRAB.
 - E P L B 8 °7
                  ' -3-


        There is little in the language of the statute, and nothing in the legislativehistory, to show 'that Congress intended to answer the question one way or the other. The leqislative history set forth in the opinion of Mr. .T. Keith Mann for Public Law Board No. 1 does not support his statement that it indicates "that members of Congress assumed 'these disputes would arise and be dealt with by special adjustment boards." The passage he quotes looks only tc. excluding such cases, and he himself reads it as not dealing with the assignment of work. The fact is that the congressional committees and ,.!.hers interested in Public Law 89-456 could not antic3pite the T-CEU decision, and therefore made no provision for the problem.

        The essence of the P,iblic Law Boards is that they will be set up--not by statute us NRAB--but by agreement between an individual carrier and the one organization representing a craft or class of employees, to resolve disputes between them. Apart j

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        from statute, a carrier and a single organization cannot set up a tribunal with power to adjudicate the rights of third parties. Edwards v, Capital Airlines, 176 F. 2d 755, cert. denied, 338 d 885. It is most unlikely that Congress intended to give two parties such extraordinary power to set up a tribunal binding a third,

        The decisive point, however, is that the composition and procedure of a Public Law Board are cast in a form that would make it unfair for the boar3 to rule upon third party interests, The members of a Public Law Board are nam<~d by the carrier and the single organization; unless they disagree as to the award, no neutral will be appointed. if the board has jurisdiction, the' two can bind the third party despite the conflict of interest.

        The neutral may also be picked by agreement of the partisan members and, even after ,z neutral is named, the partisan members may join and outvote him, Ssch a procedure is well-suited to resolving differenc ·s beth<.en- tho two parties who set up the tribunal and choose it= members, including partisan members, but

the procedure would be grossly unfair to a third party which was an adverse claimant.

 These objections were recognized by Mr. J. Keith Mann in opinion of Public Law Board No. 1:

 Even i£ the third party has full right to appear and be heard, the fact that the, only members of the hard represent participants >_n the case roes the proeeeding of zA.)1ectivit,_,7 and renders it void

 Mr. Mann then went on t.· rule that the difficulty could be got over if the car.ier and ~-ryanizati:n agreed that the Public Law Board should hear third party cases, but that it should decide them only with the concurrence of tre neutral member.

 But the change removes only a_sma17 part of the unfairness. The organization that joined fn setting up the board would have had the advantage of having participated in framing the basic agreement, 'perhaps of helping to choose any neutral member, and ultimately of taking part in all executive sessions of the board and thus,submitting final arguments outside the presence of the opposing party just as the decision is rendered. These would be very real, and very unfair, advantages. Mr, Mann's example illustrates them vividly, Mr. Mann points out that a jury in a courtroom proceeding cannot fairly be composed of the relatives of one party. The unfairness is not cured by putting a single impartial person on the jury and requiring his concurrence in the decision. When the jury retired to deliberate, the impartial person would be hearing all the ;arguments and feel all the pressure of one party's family, but the other party would be deni like opportunity, Nc court would uphold such a verdict,

 In any event, even i£ Mr, Mann's opinion is correctf the Southern Pacific ruling is distinguishable from the present case 4 There, the carrier agreed to submit the third party cases and to provide for decision by the neutral member. Here, B&M refuses

 to enter into suc;1 an agreement,
 I

 It may be argued that a proceeding before NRAB suffers from

 the same deficiencies as I attribute to a Public Law Board in a
 ~ ' iarYYfPea 8~

 :

 third party case. There are two answers which, although they are,,

 only partial, are nonetheless important,

 First, the danger that one organization will he represented

 on the tribunal while the other is unrepresented does not arise

 in all cases. Often a case will come before a division on which

 both parties are represented or neither.

 Second, the chance that selfish interests will influence the outcome is considerably diluted by the number of members on each

 division and the extent of their removal from the controversy.

 Whether the NRAB procedure is fair or unfair in work ass:Lgn^

 ment controversies is not for us to decide. In either event it, is a good deal more impartial than referring such a claim to a Public Law Board, wbich is established by agreement between the carrier and only one of the contesting organizations, aid on whitl
f

 only one of +-he cont~sting organizations is represented.

 The apparently .incu-sistent action on Claim 8566 is not a

 binding precedent bo::ause it was taken before there was time to

 consider fully the implications of the T-CEU case.

 The exclusion of this case from the docket of Public Law

 Board No, 87 would not leave the employees without a remedy. The

 claim can still go to NRAB. The only function of a Public Law

 Board is to save time. The time to be saved is not enough to

 offset the risk that the decision would not be the kind of final disposition required by the T-CEU case because it could not fair l3

 be held binding upon the rival organization.

 Accordingly, the procedural award will be that Public Law

 Board No, 87 should not consider Claim T-8566-A.

 CLAIM T-8770
Claim T-8770 raises the question whether Yard Helper L,V.

 Clark is entitled to one day's pap at time and a half the regular.
rate, plus dead-heading, because he was not called to cover ,,a

 Yard Helper's vacancy on the 3:00 p.m. switcher at Worcester,
Massachusetts, A decision on the merits of the claim will invnlie
consideration of the various agreements between BRT and B&N1,
 PL f3 8-7
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including the mumcrandum Agreemer*- of February 15, 1952 (T-79) and various addenda and supplemeuts.
    Claim T-S77'J :;as already been submitted to a Disputes Committ


                                                        under the basic May 2, 1951 agreement. BRT denies the Committee's t t


                                                        jurisdiction, and the case is awaiting disposition. i

B&M contends that under the=e circumstances Public Law Board" No. 87 should not be given jurisdiction over Claim T-8770. The gist of B&M'S argument is that, when the parties have established
 specially qualified tribunal to which they agree that claims ;-
 rising under the agreement "shall" be referred, then another "
 ribunal ought not to.intervene. _;
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      BRT's argument is that the Disputes Committee cannot hear

the claim for two reasons,',
 First, BRT argues that Article 14-of the May 25, 1951 agreeent does not apply to disput:_s arising on the B&M because it iie of mentioned in the M_·anur,i:dum Agreement of February 15, 1952 (T-79), applying the basic May 25, 1951 agreement to the property, serious objection to the arcfument, which may or may not be conlusive, is that T-79 purport:;, on its face, to set forth only the ocal modifications agreed to ht made in the basic agreement, leav'ng all the rest of the basic agreement applicable to the properoy.
 Second, BRT points out that Article 14 gives the Disputes ommittee jurisdiction over only --

 disputes arising between the parties to this agreement in connection with the revision of individual agreements so as - to make them conform to this agreement ... ince Claim T-8770 is, not of that character,-BRT concludes that the isputes Committee has no jurisdiction. ,
 B&M replies that, as a matter of practice, Article 14 has ften been construed by the Disputes Committee to cover claims 1£ke -8870. The precedents i:, the rulings of special Adjastment Board dry. Sometimes they have taken jurisdiction. On other occasions hey have referrel the matter to the Disputes Committee. In view f the diversity, the decisionsdo not constitute persuasive preodents for either view..

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PL d


There is no need for this Public Law Board No. 87 to rule
 pon the disputed jurisdiction of the Disputes Committee. Public....

 aw 89-456, 89 Stat. 208, provia es that the cases to be considered,':

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y a special board of adjustment "shall be defined in the agree-r».,.:.

 ent establishing it." The procedural neutral is empowered to
 esolve disputes over the terms to be included in the-agreement.

 ccordingly, there is no lack of power to make consideration of

 claim contingent upon the action of another tribunal.*

    As a general rule, a Public Law Board ought not to hear Casde~


ithin the jurisdiction of s special disputes committee. Such '

 isputes committees are established because of special expertise:''·.
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n applying a particular agreement, the need for uniformity, and .,

 ike considerations. One of their purposes is to take cases out.:.''

 f the National Adjustment Board, for which Public Law Boards,arp'l~-

 substitute. ?f the Disputes Committee under Article 14of the
 ay 25, 1951 agreement. has jurisdiction over Claim T-8770, Public ,
 0 aw Board No, 87 ouahc: not to hear the controversy.
 In the present ::a se, there i^ dispute over the Disputes Comittee's jurisdiction. That com:nrttee undoubtedly has power to eke a binding ruling upon its own 3urisciiction, United Steelworker . American Mfg. Ca. 363 U.S, 574, ana that question is now pending efore it. The same considerations that require the courts to tend aside arid let an arbitration tribunal make the ruling upon is own jurisdiction sheuld.cause other outsiders not to interfere. he same considerations that bar a Public Law Board from inter -ering on the merits also preclude its undertaking to rule upon he Disputes Committee's jurisdiction.** Furthermore, , it could nly promote confusion for this Board to attempt to decide the juril fiction of the Disputes Committee., That tribunal would not be ourid by the decision. If the two tribunals disagreed, the result . ould be for both to hear the same case, or for the claim to fall ridecided by either..

    * In substance, such disposition is much the same as grantlllgeoRtiriuance until the ether tribunal has acted.


    ** These comments assume chat the reference to the Disputes


ommittee is made in good faith.
 c~

 s

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 L

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 PL 8 -7

 tZ

 sip

 If the Disputes Committee takes jurisdiction over claim
 T-8770, the claim should not be heard by Public Law Board No. S?`"

 if the Disputes Committee does not take jurisdiction over Claim T-8770, there is no basis for excluding it from the, con" sidexation of Public Law Board No, 87.

 Accordingly, the procedural award is that the agreement '~:° setting up Public Law Board Nn. 87 shall contain the following

 provision:

 The Board shall have iuris3iction to consider Claim T-87%0 if, but only if, jurisdiction to decide the m.=rats is declined by the Disputes Committee before which the claim is now pending, durim: the life of 'the Board.

 CLAIM T-3913
In Claim T-8913 R.A. Stagliano seek=_ to recover the amount a£ earnings upon the 2,:59 p,m. Yardmaster'S assignment in Mechan3ytville on June 4, 1966, on the ground that he should have beefF"· called rather than J.D. Murphy, who actually filled the position. The claim is presently before the Fourth Division of the National Adjustment Board, which has reserved the question of its jurisdiction.

      E&M contends that Public Law Board No. 87 should not consider,


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(Claim T-8918 because it arises under the Yardmasters'! Agreement. ;

 In support ac this contention B&M has submitted copies of a lett!i~addressed by the National Mediation Board to Charles Luna,
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addressed by the National Mediation Board to Charles Luna, President of the BRT, on July 5, 1967, declining to appoint a Public Law Board on the Southe m Pacific to consider a group of claims pertaining to Yardmen working in a bargaining unit for ~ which BRf was not the r^presentative.

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      ART makes two p·Ants in reply.

      First, BRT says that the NbtB letter relates or;1y to setting,";-

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up a board to hear a special group of yardmen's eases whereas
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Public Law Board No. 87 will hear a wide variety of claims. But,,
 the the argument does not ::eet the real objection, which is to alloWiFi
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an organization not the bargaining representative to present a ease to a board made up of representatives designated by the carrier and itself, by-passing the rival organization that negot7l=
        c._,, · PL o~ 8--~. ' ;


ated the contract and is the majority choice of the men in the - ,
 unit. The result would be to promote jurisdictional rivalry, and' q
 to open the door tic conflicting rulings. The House Committee
 that reported Public Law 89-456, expressed the intention to have ,°
 such cases excluded from the jurisdiction of special boards of
 adjustment, See H . Rep. 1114, 89th Con ·a'
                                g., 2d Sess., p. 14.


      Second, BPT denies that Claim T-8918 is founded upon the


Yardmasters' Agreement. It points out that its submission does
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not invoke the Ysrdmasters' Agreement, and that the carrier's submission also analyzes the case in terms of the Yardmen's Agree- "' ment. In fact, the carrier seems to be making two defenses: (i) that it complied with the Yardmen's Agreement; and (ii) that, in any event, the case is governed by the Yardmasters' Agreement, under which no money is due.
 Stagliano is a rostered spare Yardmaster with seniority right as a Yardmaster. Everyone agrees chat he has rights to be,called to work under the Yardmast.ers' Aureement in accordance with Rule 2 Seniority. In those matters Stagliano is represented by the Yardmasters and they could not appropraa,:ely be referred to a Public Law Board established a! the request of BRT.
 In this case Stagliano, who apparently has no basis for any claim under the Yardmasters' Agreement wishes to fall back upon Rule 3 of the Yardmen's Areement claiming that it is applicable to him as a Yardman rEgardless of his status as a rostereql Yardmaster with rights defined Jay the Yardmasters' Agreement.
 It is not for us to rule on the merits of that. claim. It i% clear, however, that Stagliano 3s a rostered Yardmaster is in the capacity a member of the Yardmasters' Graft or class. He cannot ibut that status on or off at will. /Since the craft or class of Yardmasters, including spare Yardmasters, is represented by the Yardmasters' union, it would give Public Law Board No. 87 "jurisdiction so broad as to invade the jurisdiction of another union," to provide that it should hear Stagliano's claim.' The House Committee expressed the expectation that the procedural neutrals wou~. "determine the jurisdiction of the board so as not to invade the established jurisdiction of another union." H. Rep. 1114, su ra.,

 ~ti~
 eYri· f ,
 x'ihl f
 BRT cites as a contrary precedent Award No. 11402 of the First Division of the NRAB. That case, however, did not deal wiP~% the rights of persons rostered as Yardmasters; rather, it dealt with the promotional opportunities of Yardmen who, up to that point, had had no standing as Yardmasters, Award 12335 dealt only with a Switchman' right, under the Switchmen's Agreement, to extra pay for doing work of a higher classification.
 Accordingly, Claim T-8918 should not be referred to Public.?;;: Law Board No. 87.

                CLAIMS T-8728 and T-8730 , :Ar,

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T'hese claims relate to tree operation of trains between Meehanicville and Selkirk. There is joint service with the New. York Central Railroad between these points in the sense that New York Central cre·.:s operate between Syracuse and Mechanicville ' and return while B&M crews ol.erate between Mechanicville and Selkirk and return. On February 20, 1936 the B&M, the New York Central, and representatives of the four train service employees on both properties entered into an agreement which stipulates, among other provisions, that --

 Claim T-8728 results from the fact that, on each of several days, B&M crews were turned at Rotterdam and, sent back to Meahanicville instead of continuing to Selkirk and then returning.* Claim T-8730 seeks one day's pay for Freight Conductor Garland-tand crew "account of his regular assignment running in inter

 railroad service cancelled and two (2) New York Central crews being run in inter-railroad service between Mechanicville and

 Selkirk,"

 The mileage made by N.Y.C. crews on B&M rails will be equalized by B&M crews in service between Mechanicville and Selkirk.

 H&M argues that these cases should not go before Public F,S`W~, Hoard No. 87 because other organizations are parties to the Selkirk agreement and will be affected by its interpretation.
 The interpretation put upon the February 20, 1936 agreement

 pea s-7

 _11_

 The argument is unpersuasive. v The mere fact that other
organizations are parties to the a~areement should not deprive BR7`' of the right to refer its claims to a Public Law Board. There _.; is no hostility between the claim BRT is presenting and the ' claims of other employees. Ts BRT were saying that some of the work done by NYC crews should ~:ave gore to H&M, there would be a third party contest. Hut HRT disclaims any such argument. BR'R'` says that the NEw York Central may run such trains as it pleases;

 and that whenever a NYC train is run, B&M must run a train (or pay the employees) regardle:;s of wl:e;ther there .i.s work for them. BRT will have to stand or fall upon that argument, insofar as it relies upon the Selkirk agreement. The decision, therefore, cannot take any work from NYC employees or members of another ,organization. That being true, there is no unfairness in having Ithe case decided by a board constituted by BRT and B&M.-,/For the same reason, the .problem raised by Claim T-8566-A is distinguishable.
 It is possible that, if 13RT prevails, B&M may be moved to set in motion a sequence of events that could have adverse con-
sequences upon the NYC employees. We should not speculate upon that point, however. There :pill be no award taking anything.' from any other employees. T1-:e possible consequences at thq end ~ of a chain of practical events -- which may never eventuate

 jis not enough to classify the case as a third party controversy,,,

 may be of interest to the other parties, even though the BRT claim cannot injure them, If the Neutral Member is interested lin their.interpretatmn of the document or thinks they should ibe heard, the necessary notice can be given. In either event, the point is not jurisdictional and the absence of the other
 parties would neither impair the jurisdiction of Public Law
 Board No. 87 nor detract from the validity of its award.

 Archlbald Cox, Procedural Neutral, _,'n
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Accordingly, the award is that Public Law Board No. 87

 shall have jurisdiction over claims T-8728 and T-8730.

 / W. J4 earn

    Di.~nts as to opinion of this Bo rd in connection with Claims T-8728 and T-8730.


    Scanlan, organization Member

is cents un Opinion and Award on the

 Jurisdiction of Public Law Board 1Vo;.B7

 as it relates to Claims T-856b-A, T-8770 and T-8918.

 Boston, Massachusetts

 January 22, 1968