AWARDS 66 - CARRIER REFUSED CONFERENCES ON PROPERTY

Fourth Division Award No. 3162 (O'Brien)

"Before reaching the merits of this controversy, the Board must pass on an argument raised by the Organization that Carrier failed to hold a conference relative to this dispute after being requested to do so by the Organization's General Chairman. It is without question that the Railway Labor Act (Section 2, Second and Sixth) imposes upon the parties an obligation to hold a conference in connection with each dispute that they are unable to settle by other means. Section 2, Sixth provides that it shall be the duty of the Carrier's designated representative to specify a time and place for a conference within ten days after receipt of a request for such a conference.

"In the case at hand when the claim was appealed to Mr. Fremon, Carrier's Highest Official, on October 23, 1973, the Organization's General Chairman requested that a conference be held to further discuss this matter. Carrier's representative failed to respond to this request and never arranged for a conference to be held as is required by the Railway Labor Act. Since it was incumbent upon the Carrier to specify a time and place where the requested conference was to be held their refusal to do so constituted a violation of the Railway Labor Act, Section 2, Second and Sixth. We will consequently sustain the claim before us based on Carrier's violation of the Railway Labor Act without reaching the merits thereof."

Third Division Award No. 13120 (Dorsey)

"The record reveals that no conference was held on the property in an attempt to resolve this dispute before filing of the petition with this Board. The Board must determine whether it has jurisdiction. This gives rise to the question whether such a conference on the property is an indispensable condition precedent to invoking this Board's jurisdiction. The question must be resolved by application of the principles of statutory interpretation to the Railway Labor Act, as a whole, and in particular Section 2, Second and Section 3, First (i) of the Act; also, Circular No. 1 of the Board's Rules of Procedure promulgated pursuant to the Board's rule making power vested by Section 3, First (u) of the Act. Rules promulgated by statutory authority have the force and effect of statutory enactment.

"This jurisdictional issue has been raised in a substantial number of cases. Unfortunately our Opinions are conflicting. This is demonstrated in the following recent Opinions.

"JURISDICTION: Award Nos. 12853 and 13023

"NO JURISDICTION: Award Nos. 11434 and 11484

"It is a fundamental principle of Administrative Law that a party has no resort to the courts until having exhausted the administrative remedies. We are of the opinion that this principle is equally applicable in the handling of disputes under the Railway Labor Act. That is to say, the parties must, on the property, exhaust the procedures prescribed in the Act - which include `conference between representatives designated and authorized so to confer' - as an indispensable condition precedent to perfecting a petition to this Board. To hold otherwise would ascribe meaninglessness to works of the statute.

"We find, absent a conference on the property, this board has no jurisdiction. We will dismiss the Claim for lack of jurisdiction.

"This Opinion is not to be construed to mean that either party can evade this Board's jurisdiction by refusing or otherwise evading a conference when requested. The statutory indispensable condition precedent is satisfied if either party requests a conference and the other party fails, refuses or evades its obligation to confer within a reasonable time."

Third Division Award No. 13097 (Hall)

"Before entering into a consideration of this claim on the merits it would be well for us to review the question presented by the Carrier as whether or not this dispute is properly before us inasmuch as the matters involved herein were not handled or considered in conference on the property by the duly authorized representatives of the Employes and the Carrier, as required by Section 2, Second of the Railway Labor Act, approved June 21, 1934, and Circular No. 1 of the National Railroad Adjustment Board, issued October, 1934. There has been a divergence of opinion in the awards of the Third Division on this subject.

"Provisions of the Railway Labor Act directly pertaining to the necessity of holding a conference between parties to a dispute are contained in Section 2, First, Second and Sixth which are, as follows:

"`First. It shall be the duty of all carriers, their officers, agents, and employes to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employes thereof.

"`Second. All disputes between a carrier or carriers and its or their employes shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employes thereof interested in the dispute.

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"`Sixth. In case of a dispute between a carrier or carriers and its or their employes, arising out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, it shall be the duty of the designated representative or representatives of such carrier or carriers and of such employes, within ten days after the receipt of notice of a desire on the part of either party to confer in respect to such dispute, to specify a time and place at which such conference shall be held: . . . And provided further, that nothing in this Act shall be construed to supersede the provisions of any agreement (as to conferences) then in effect between the parties.' (Emphasis ours.)

"Circular No. 1 of the National Railroad Adjustment Board - Organization and Certain Rules of Procedure - provides, as follows:

"`First. It shall be the duty of all carriers, their officers, agents, and employes to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employes thereof.

"`Second. All disputes between a carrier or carriers and its or their employes shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employes thereof interested in the dispute.' (Emphasis ours.)

"It is extremely important that the word `shall' is used both in Section 2, Second, of the Railway Labor Act and in Circular No. 1 of the National Railroad Adjustment Board adopted to effectuate the enforcement of the provisions of the Railway Labor Act. That a meeting of the parties is contemplated is indicated in Section 2, Sixth, of the Railway Labor Act wherein it is stated that `within ten days after the receipt of a desire on the part of either party to confer in respect to such dispute, to specify a time and place at which such conference shall be held . . .'

"It has been indicated in a number of awards of this Division that no conference on the property is necessary before appealing to this Board for the following reasons: (1) Because the issue was not raised on the property it cannot be considered here; (2) that where there has been a final declination of a claim by the highest authorized personnel officer of a Carrier it would be a vain gesture to hold a conference; (3) that Carrier not having, itself, requested a conference, cannot defeat consideration of the claim here; (4) That the Railway Labor Act and Circular No. 1 do not make it mandatory that a conference be held between the parties prior to submitting it to the Board and that a conference is only necessary when requested by one of the parties.

"Some of these holdings have indicated that such views were expressed for equitable considerations. This Board has no equitable jurisdiction.

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"In answer to the first (1) contention, the question of a failure to hold a conference could not have been presented until the Submission of matters in dispute to this Board.

"It is quite significant that in the Railway Labor Act the word `shall' is used in Section 2, First, and, more particularly, in Section 2, Second, as follows: `All disputes between a carrier . . . and its . . . employes shall be considered . . . in conference between representatives designated and authorized so to confer.' (emphasis ours.)

"The word `shall'; generally, and as therein used is not a permissive word but is a directive and a mandate. It means, positively, that a conference be held whether or not the one requesting or demanding such a conference considers it a vain or useless thing. In the instant case there is no claim that any conference was held nor that any was requested by the Organization. The Organization is the moving party before this Board. If the Petitioner wants to invoke the action and assistance of this Board in adjusting a dispute between the Petitioner and the Carrier, Petitioner must demonstrate that every effort to settle this claim has been exhausted on the property and that includes the requirement of the Railway Labor Act that a conference be held between the parties. It wasn't up to the Carrier to do so as Carrier is not the moving party before this Board (the record discloses Carrier did suggest a conference).

"Petitioner relies on Award 10675. In that award, after having made the following statement:

"`As the Carrier contends, Section 2, Second of the Act expressly requires all disputes to be considered in conference before being considered by the Board. Without more, an almost unimpeachable argument could be made that such a conference is a condition precedent to review by the Adjustment Board. Especially is this true because Congress intended it to be this way.',

an attempt is made to indicate that Section 2, Sixth, of the Railway Labor Act reads into Section 2, a qualification of Section 2, Second, and that, consequently, a conference is only necessary when requested and is not mandatory. If we accept this conclusion we would have to indulge in the following assumption - that the simple procedure for setting up a conference as outlined in paragraph Sixth was intended to conflict with the mandatory provisions in paragraph Second. This is contrary to the accepted rules of statutory construction. It is a rule of construction that any reasonable interpretation of two provisions in a statute that will avoid conflict between the two must be adopted in preference to a construction that creates conflict.

"The Sixth paragraph merely sets up a method of procedure and provides time limits in which to hold a conference in the event a request is made for a conference. In the instant case had the Carrier denied a request by employes' representatives for a conference, or had through dilatory tactics failed to hold one when requested, a different problem would have been presented to the Board. See the following awards: Award 10852-McGrath; Award 10939-McMahon; Award 11136-Moore; Award 11434-Rose; Award 11484-Hall; Award 11737-Stark; Award 11896-Hall; Award 12290-Kane; Award 12468-Kane; Award 12499-Wolf.

"For the foregoing reasons we are compelled to dismiss this cause."

Third Division Award No. 11737 (Stark)

"Carrier contends, preliminarily, that this case should be dismissed for lack of jurisdiction since no conference was held on the property in accordance with requirements of the Railway Labor Act and Circular No. 1, the Board's Rules of Procedure. Section 2, Second of the Act declares, in part, that `All disputes . . . shall be considered . . . in conference between representatives designated and authorized to confer, by the carrier . . . and by the employes thereof interested in the dispute.' Section 3, First (i) of the Act requires that `The disputes . . . growing out of grievances or out of the interpretation or application of agreements . . . shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such dispute; but, failing to reach an adjustment in this manner, the dispute may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board . . .' The Board's rules provide, in part, that `No petition shall be considered by any division of the board unless the subject matter has been handled in accordance with the provisions of the Railway Labor Act . . .'

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"There is considerable evidence in the file showing that the `usual manner' of handling disputes between these parties included a conference at the final appeal level. Here, Carrier arranged for a meeting through its January 14 letter, thereby demonstrating its desire to follow regular procedures. Petitioner canceled the conference because of the press of other work. Carrier was then obliged to submit its answer to the claim in accordance with time limit provisions of Article V of the 1954 National Agreement (i.e. by February 16). However, as indicated, the denial was rendered on January 21.

"The Act, it is true, does not place responsibility solely on either party for conducting a conference; this is a mutual obligation. However, Board Rules, in restricting consideration of petitions to those whose subject matter has been handled in accordance with the Act, impose a duty on the petitioning party to insure that this requirement has been met. That is not to say, necessarily, that no petition can be accepted unless a joint conference has been held. There may be cases where the parties mutually agree to forego the conference, or where Petitioner requests and Carrier refuses to conduct such meeting. But we are not dealing with that type of situation here.

"In the case at hand Carrier made clear its interest in having a conference. It was not obligated, in our judgment, to press for a meeting when Petitioner canceled the scheduled one. It had a right to assume that Petitioner would comply with all legal and procedural requirements (particularly in view of customary procedures on this property) before proceeding to the Board. Carrier's final declination of the claim, within Article V time limits, cannot be construed as a waiver of its desire for a meeting. Neither did the length or fullness of Carrier's denial justify the conclusion that such a meeting would serve no useful function. Parties are expected to put their best feet forward in denials and appeals, if for no other reason than to avoid subsequent charges of `new issues' or `new evidence' being raised. Petitioner's contention that Carrier's denial was in lieu of a conference waiver is not supported by evidence and is denied by Carrier. In view of the fact that all other matters in connection with this case were handled by letter, it is reasonable to assume, moreover, that a conference waiver - had there been one - would also have been set forth in writing.

"The importance of conferences has been emphasized in prior awards and need not be repeated here. However, the First Division's comments in Award 16752 are worthy of note:

"`Conferences held in good faith on close questions by representative of the parties, who are highly skilled and well informed, should and no doubt do settle innumerable disputes thereby avoiding the delay, inconvenience, and expense of submitting them to this Board. . .'

"For the reasons set forth above it is our conclusion that these claims must be dismissed."