On June 20, 1966, the 89th Congress enacted Public Law 89-456 which amended Section 3, Second, of the Railway Labor Act in order to provide for establishment of Special Adjustment Boards upon the request either of representatives of employees or of carriers to resolve disputes otherwise referable to the National Railroad Adjustment Board, or any dispute which had been pending before the NRAB for twelve months from the date the, dispute (claim) is received by the NRAB.
Such Special Adjustment Boards, which for identification purposes are referred to as Public Law Boards to distinguish them from Special Boards of Adjustment (SBA) otherwise provided for in the Railway Labor Act, have the same jurisdiction over claims and disputes submitted to them as does the National Railroad Adjustment Board.
CASES THAT CAN BE SUBMITTED TO A PUBLIC LAW BOARD
1. Disputes which are referable to the National Railroad Adjustment Board. Such disputes must have been handled in the usual manner on the property up to and including the highest officer of the carrier designated to handle such disputes.
2. Disputes that have been pending before the National Railroad Adjustment Board for at least twelve (12) months.
CASES THAT CANNOT BE SUBMITTED TO PUBLIC LAW BOARDS
1. Claims and grievances arising under laws or agreements containing specific provisions for the disposition of such claims and grievances must be handled in accordance therewith. This should be carefully observed when preparing cases for a Public Law Board.
2. Disputes growing out of request for changes in rates of pay, rules, or working conditions.
When notice is served on a carrier to initiate the establishment of a Public Law Board, the notice should be timely filed in keeping with the grievance procedure, should clearly state its purpose and authority, should designate the employee member of the proposed Board, and must include a list of the cases to be handled by the Board. A proposed agreement to govern the establishment of the Board should be furnished with the notice. The serving of such proper notice will constitute the institution of proceedings for the purpose of satisfying the time limit requirement of the grievance procedure. The notice is to be reviewed by the General Chairperson.
In the handling of disputes under the grievance procedure, very often Public Law Boards do not have to be established by mutual agreement between the carrier and organization without the serving of notice by either party. Many times the agreements are entered into by officers assigned to assist General Chairperson. Voluntarily setting up Boards in this manner is acceptable, although it is the policy of the UTU to encourage the serving of proper notice by the General Chairperson and that he/she also enter into the agreement with the carrier representative. Particularly, if it is anticipated that a carrier may be unwilling to enter into an agreement to establish a Board, the General Chairperson should serve the notice and execute the agreement ultimately reached in order to avoid a challenge that such actions were not by the certified representative. Secondly, the rules of the National Mediation Board, Section 1207.1, require that requests of General Chairperson or International Officers for Mediation Board action (appointment of neutrals under NMB Rule 1207.1) must have the approval of the Chief Executive of the employee representative. The request to the Board must be filed on NMB Form 5, which requires supporting data including date notice for establishing a Public Law Board was made.
If, within thirty (30) days of the serving of the notice for a proposed Board, an agreement, along with the cases to be heard is not reached, the carrier refuses to enter into a suitable agreement or appoint its member of the proposed Public Law Board, as required by Public Law 89-456, the International Office (Field Service Department) should be notified and a request will be made for the National Mediation Board to designate a carrier member or appoint a procedural neutral, as the case may be. The specific issue or dispute preventing an agreement should be provided together with supporting data as required on NMB form 5.
Rules of the NMB contemplate that when the partisan members of the Board are designated, they must confer in an effort to reach an agreement establishing the Board. If this should prove unsuccessful, a procedural neutral can be requested to assist the parties by resolving any issues preventing the parties from reaching an agreement.
Technically, under the Act, when the partisan members have been designated and an agreement reached, the Board is established and is to attempt to agree upon an award to dispose of the dispute or group of disputes. As this would be redundant with handling on the property, it is seldom done. But the parties are cautioned that any cases on the docket that are settled, unless withdrawn from the Public Law Board, constitute awards and must be filed with the National Railroad Adjustment Board along with the record of the cases, which then become public property.
When the agreement establishing the Board has been finalized, the partisan members should meet as provided therein and endeavor to select a merits neutral member. NMB rules specify that "no neutral will be appointed under Section 1207.1 (c) (merits) until the agreement establishing the Public Law Board has been docketed by the Mediation Board." The parties should advise the NMB, preferably by joint letter, of the neutral selected. If the parties are unable to agree on a neutral, the National Mediation Board should be requested to appoint one.
Three (3) copies of the agreement with a list of cases included, should be furnished the UTU International Office for approval, two (2) of which will be furnished to the National Mediation Board. Often, upon reaching agreement, the parties may choose to furnish copies directly to the Mediation Board. When this is done, a copy of the transmittal letter with one (1) copy of the agreement and list of cases should be furnished the UTU International Office.
In the event a carrier serves notice to establish a Public Law Board, the General Chairperson is obligated to meet with the carrier and endeavor to reach a suitable agreement. The law applies equally to management and the organization insofar as the establishment of a Public Law Board is concerned.
CASES WITHDRAWN FROM THE NATIONAL RAILROAD ADJUSTMENT BOARD
Cases can be withdrawn from the National Railroad Adjustment Board if they have been pending before that tribunal for at least twelve (12) months.
The withdrawal of such cases will be under the terms established by the NRAB for withdrawing cases, should be identified in the notice for a Public Law Board, and when the Public Law Board agreement is consummated the NRAB must be notified of their withdrawal to avoid the cases being reheard by that tribunal. The cases cannot be resubmitted to the NRAB. The presentation and hearing of these cases should be limited to the record before the NRAB as that would constitute the record of handling on the property.
A sample paragraph for use in such instances to be added to Paragraph (G) of the Proposed Agreement would be:
The cases that have been withdrawn from the National Railroad Adjustment Board shall be decided upon the record of the case before the NRAB consisting of employees' ex parte submission, carrier's answer, employees' reply, and interpretation, if any.
After a Board has been established, cases may be added to the docket by agreement * between the parties to the Board, subject to approval by the National Mediation Board and with the concurrence of the Neutral Member. One or the other party may not unilaterally add cases to a Board. The addition of cases to a docket must be authorized by the NMB prior to hearing or considering such cases. An award on an unauthorized case would have no legal standing. However, it is not the intent to encourage or solicit additional cases; on the contrary, it is policy to discourage the establishment of "Permanent" Boards. Also to be avoided is establishing a Board with a large docket of cases. In such instances, the National Mediation Board may delay establishing the Board while requesting that the cases be grouped under issues to expedite handling and reduce expense of neutrals. When the proposed docket of cases contains a number of discipline or reinstatement cases, it may be advisable to establish a separate Board to expedite such cases, particularly, at those times when the NMB is short of funds and must curtail activity of neutrals.
THIRD PARTY INTEREST IN JURISDICTIONAL WORK DISPUTES
Where a true jurisdictional work (or job) dispute appears to exist in cases referred to a Public Law Board, such determination should be made by the Board with the Neutral Member participating as one of the majority considering and making the decision. If it is found that a third party may have an interest, such party should be notified and invited to participate in the manner provided by the agreement. The Neutral Member shall be one of the two or more / members of the Board rendering an award in a dispute where notice of hearings has been given to third parties.
Craft autonomy was a condition of acceptance of unification by the four former organizations creating UTU. Therefore, all concerned must carefully protect this inherent right when handling cases before a Public Law Board. Special attention should be given by consolidated committees.
Disputes arising from interpretation and application of collective bargaining agreements of the separate crafts, that prior to unification may have been handled by tribunals established by law or agreement, may now become an intra-union matter.
When disputes involving more that one collective bargaining agreement within the UTU are to be progressed to a Public Law Board, consideration should be given to whether separate Boards should be established. But if handled by an officer before the same Public Law Board, the cases should be listed separately insofar as possible under the agreements involved. When separate General Committees are involved, extreme care must be observed to permit the General Chairperson of the UTU having jurisdiction over the agreement to appear in person before the Board to give his/her interpretation of the agreement, or to submit a written interpretation, or concur with the interpretation of the UTU partisan member of the Board. ^_^
Care must be exercised when handling enginemen's cases to guarantee the UTU's right to progress claims or grievances arising under another engine service agreement. This right under the Railway Labor Act has been clearly upheld in the courts and there should be no relaxation of the right to handle such cases to a conclusion.
When the members of the Board first meet, the Board may desire to organize itself and adopt rules and procedures for guiding its own function, set future hearing dates if necessary, the order and priority for handling cases on the docket, the handling of cases requiring notice to the grievant of date place and time of hearing of his case, handling of proposed awards, executive sessions, furnishing record to NRAB and such other matters deemed appropriate by the Board members. Any change in time limits or waiver of time limits for handling cases as set forth in the agreement must be documented by notice to the NMB.
When the Board is meeting with a Procedural Neutral, only the decision of the Procedural Neutral is necessary; when meeting with a Merits Neutral, an award requires a majority vote of the members.
It is preferable that proposed decisions of a Board be considered in an executive session with only the principals in attendance to review proposed decisions with the neutral member before they are finalized for signature by the respective members. This may be an absolute requirement where a third party is involved. However, where there are many cases, or where cases may be added to the docket after the Board commenced functioning, or if reinstatement cases do not require such meeting, executive sessions can be inconvenient and require unnecessary expense to all parties, including the NMB. Common practice, therefore, is for the Board to recess to allow the neutral member time to prepare proposed decisions and submit them to the carrier and employee members for review and concurrence with his determination. However, there should be an understanding with the neutral member that when proposed decisions are distributed in this manner, should either party object, the neutral's signature is not to be considered valid until he entertains the objection and submits a final award. All awards should be dated and signed by the parties. In the event the employee member feels a decision is erroneous, he should so indicate by signing his name and writing "Dissent". In a few cases where the decision is so contrary to past practice or precedent decisions, a written dissenting opinion may be found necessary to be made a part of the final award.
INTERPRETATIONS - COMPLIANCE - ENFORCEMENT
Awards of Public Law Boards are to have the same status as awards of the National Railroad Adjustment Board, including compliance and enforcement. On this basis, the interpretation of awards of the NRAB as provided by Section 3, First (M) of the Railway Labor Act is equally applicable to awards of Public Law Boards. The provision of the agreement in Paragraph J contains language taken from the Act and sets no time for requesting interpretations. Many carriers desire a specified time limit, some as short as thirty days. This matter became the subject of several disputes ruled on by Procedural Neutrals with two finding no time limit required, but the majority finding a period of one year was appropriate. We find a minimum of ninety days to be acceptable, but in no case should thirty days be agreed to, as awards generally provide thirty days for compliance leaving no time to request an interpretation if it is felt the carrier has not properly complied with the award.
Requesting an interpretation can often be utilized to clarify the intended application and required compliance in lieu of seeking enforcement.