AWARDS 121 - JURISDICTIONAL ISSUE MAY BE RAISED AT ANY STAGE OF HANDLING

Fourth Division Award No. 4871 (Mason)

"The instant challenge to the jurisdiction of this Division to decide this case must be addressed before any possible consideration can be given to the merits of the dispute. The jurisdiction of the respective Divisions of the Board is established by the provisions of the Federal statute which created the Board - the Railway Labor Act, as amended. All Divisions of this board have, over the years, recognized that a challenge to jurisdiction may be raised at any stage of handling of the dispute. See Second Division Award 11708, and Third Division Award 27575 as examples. The timeliness of this jurisdictional challenge does not render it void. Neither does the statement in Award 4033, quoted supra, standing alone contravene or supersede the explicit provisions of the Railway Labor Act, as amended. The logic expressed in Third Division Award 16665 applies equally to this dispute.

"Therefore, no ruling will be made on the merits issues in this claim. Rather, the claim is dismissed without prejudice on the basis that this Division of the Adjustment Board does not have jurisdiction over the class of employees in which Claimant was assigned on the date in question."

Fourth Division Award No. 4872 (Mason)

"Before this Board, the same jurisdictional argument as was made in Fourth Division Award 4871 was repeated in this case.

"The Board's position in this regard is adequately set forth in Award 4871. It is equally applicable in and dispositive of this case.

"The claim as set forth herein is dismissed without prejudice on the basis that this Division does not have jurisdiction over the class of employees in which Claimant was assigned on the date in question."

Second Division Award No. 12517 (Fletcher)

"With regard to the jurisdictional issue, even though the Organization argues that it comes late, this Board has uniformly held, on all Divisions, that issues of jurisdiction may be raised at any time. In this regard see Second Division Award 6003, involving the same parties before the Board here. Therein, the Board stated:

"`Once this Division is put on notice that the matter is outside its province it must proceed on its own motion to dismiss the claim for want of jurisdiction. This is the proper course, even though the parties themselves have not raised this point on the property.'

"See also Third Division Awards 27575 and 20165 and the Awards cited therein."

First Division Award No. 24205 (Eischen)

". . . The objection is not just procedural but also jurisdictional, and thus may be raised at any time. . ."

Public Law Board No. 5303, Award No. 2 (Zusman)

". . . The Board has long noted that jurisdictional issues may be raised at any time. . . .

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"Accordingly, based upon all the facts of record, this Board must dismiss this Claim for lack of jurisdiction. . . ."

Third Division Award No. 30615 (Eischen)

"The Organization did not refute the Carrier's argument that jurisdiction over this dispute is vested in the Arbitration Committee, but protested that this belated jurisdictional argument could not be considered by this Board because it had not been joined in handling on the property. Certainly it is better practice to raise and discuss fully in grievance handling all evidence and arguments available to a Party. Under Circular No. 1, Parties are prohibited from raising and this Board is bound not to consider evidence withheld from handling on the property. Thus, the Board generally will reject any proffer of de novo evidence in submissions. It is equally well established, however, that a motion to dismiss for lack of subject matter jurisdiction may be raised by a party at any time short of a final decision. Third Division Awards 19527, 28838. If such a motion is well grounded it must be granted, for the Board has no authority to determine a dispute over which it lack jurisdiction. See Third Division Awards 27100, 26953 and 26006."

Second Division Award No. 12712 (Zusman)

"Careful consideration has been given to all arguments herein before the Board. The procedural issue before us may be raised at any time (Fourth Division Award 4871). The jurisdiction of the Board is explicitly limited by Section 3, First (h) of the Railway Labor Act, as amended. The Second Division has jurisdiction over disputes involving Sheet Metal Workers, but this employee is not properly covered by the Agreement Rule protecting his class or craft before us. The Railway Labor Act was not constructed to provide jurisdiction dependent upon Organization, but upon class or craft. The Scope Rule of this instant dispute, as well as the facts at bar concerning the Claimant are covered by the Foremens' Agreement. The Claimant is a supervisory employee 'over which jurisdiction is not given to the first, second, and third divisions' by the Railway Labor Act. As the instant Rule covers a contract Supervisor, the Board is precluded from consideration of the merits.

"Accordingly, as this Division of the Adjustment Board lacks jurisdiction under Section 3, First (h) of the Railway Labor Act, it may not reach the merits. As the governing Agreement and disputed Rule covers contract Supervisors, the provisions of the Act, supra compels us to dismiss the Claim."

Fourth Division Award No. 4931 (Richter)

"However, before we can resolve the positions of the parties the Carrier Member at the Referee Hearing claimed this Board lacks jurisdiction to hear this case because a conference was not held between the General Chairman and the Director of Labor Relations. Many tribunals have held that jurisdictional issues can be raised at any time. See Third Division Awards 8886, 9189, 10956, 19527, 20165, and 20832."

Third Division Award No. 29909 (Fletcher)

". . . . Jurisdictional challenges, as opposed to procedural challenges, may be raised at any time. A failure to raise jurisdictional challenges on the property does not foreclose their consideration after the matter is placed before the Board. In this regard see Third Division Award 27575, wherein the Board stated:

"'The Organization's contention that the jurisdictional issue cannot be considered because it is new argument raised for the first time before this Board is not well-founded. This Board has over the years held that jurisdictional issues can be raised at any time. See Third Division Awards 8886, 9189, 10956, 19527, 20165, and 20832.'

"Accordingly, the Claim must be dismissed for lack of jurisdiction."