example, the average total number of cases docketed is seen to be 64-plus; the average total number of cases decided is shown to be only 28-plus, which means there is bound to be an increase in the backlog of undecided cases. This is borne out by the figures for the last month reported-June 1963: 46 cases were docketed whereas only 18 were disposed of-13 being decided and 5 withdrawn by the parties before an award was made. The increase in our backlog for the month of June 1963 is, therefore, 28 cases which is more than twice the number we decided during that month.

We do not believe it is necessary to make any comment as to the picture these statistics portray with reference to the deplorable conditions now prevailing and, incredible as it may seem, getting worse by the day.

Question 5 (pt. 1). If there is a backlog of cases, and if delays are general, is there an appropriate framework in the law for eliminating the backlog and delays?

Answer. This part of the question must be taken in two parts. The first will have to do with application of the Railway Labor Act, as amended, to eliminate the backlog. The answer to it is there are provisions but there is evidence they would be ineffective if invoked. The backlog could be set aside for disposition by supplemental board, or boards, under section 3, First, (w) of the act as was done by the First Division during the period October 1949 to March 31, 1953, when two supplemental boards functioned as well as the regular board. Too, the backlog could be substantially reduced, if not totally eliminated, by establishment of special, or system boards of adjustment by agreement between the several railroads and representatives of the organizations affected, under section 3, Second, of the act. This provision is watered down to the point of being virtually ineffective, in its present form, in that it requires mutual agreement between the parties for establishment of a special board of adjustment on a given carrier. Efforts to eliminate (1) part of the pending backlog, and/or (2) probability of increasing its size, by setting up such boards, have been frustrated by refusal of some of the railroads involved to participate.

The feasibility of establishing one or more supplemental boards to function concurrently with the First Division, regular board, for the purpose of reducing or eliminating the backlog, is somewhat dubious in view of the performance record of the prior boards. When the First Division established two supplemental boards, which commenced to function in October 1949, there was a pending backlog of 3,865 cases. The three boards labored together from then to March 31, 1953, when the two supplemental boards were discontinued and the backlog of cases as of February 1953 was 3,659, which reflects a reduction of 206 from the October 1949 total.

The reason for this negligible result may be explained by these figures: during 13 full years of operation, 1935 through 1948, (excluding the year 1946 during which the Division did not function fully), the former regular board disposed of 12,367 disputes, averaging 951 per year. The three boards of the First Division (regular board and two supplemental boards) functioned 3 full years-1950, 1951, and 1952. During those 3 years, all three boards combined, disposed of 2,775 cases, averaging only 925 per year, which is 26 cases a year less than the former board, working alone, had averaged over a 13-year period.

Based on these results, it would not appear that the provisions now existing under the Railway Labor Act, as amended, lend assurance that acting within their framework will reduce or eliminate the backlog.

The second question raised in part 1, question No. 5, may be stated in this way: "Is there an appropriate framework in the law for eliminating the delays?"

The answer is "No." But the answer must be accompanied by some explanation.

The reader must understand beforehand the reason for the delay in processing cases on the First Division and what we have to say here on that subject is confined (unless otherwise expressly indicated) to a comparison of case-handling methods by the First Division representative of the Brotherhood of Railroad Trainmen with that of the five carrier members.

The delay in deciding cases, which has resulted in accumulating the backlog, is the result of having a substantial percentage of them decided by a neutral (referee) appointed by the Mediation Board and a fair appraisal of this situation requires us to consider whether the Division is justified in so doing.

First, we must take cognizance of the purposes and intendments of the Congress when the Railway Labor Act was formulated, with particular reference to respective representatives to be appointed as members of the four divisions. It was anticipated that both sides would select men from their ranks, highly qualified in the meaning and application of the long-existing collectively bargained agreements and these men were to assume the roles of judges. They were, in effect, to comprise the "Supreme Court" for disputes over which they had jurisdiction, as spelled out in section 3, first, (i) of the act; they were expected to approach each dispute with an open mind for the purpose of applying their wealth of background knowledge, experience, and practical familiarity with railroad operations in a manner resulting in fairly deciding it on the merits. If the particular claim was valid, a sustaining decision would result; if the rules, applied to the facts, in the light of the record as a whole, indicated lack of merit, the claim would be denied. If the members functioned in this manner, obviously, they would decide all disputes submitted except those where there was an honest difference of opinion on the merits.

What we have said is supported by decisions of the U.S. Supreme Court and other high State and Federal courts.

In Slocum v. D.L. & W. RR. Co., 339 U.S. 239, 70 S. Ct., 577, the U.S. Supreme Court, speaking through Mr. Justice Black, said in its opinion:

****The adjustment board is well equipped to exercise its Congressionally imposed functions. Its members understood railroad problems and speak the railroad jargon. Long and varied experience have added to the Board's initial qualifications. Precedents established by it, while not necessarily binding, provide opportunities for a desirable degree of uniformity in the interpretation of agreements throughout the Nation's railway system."

A dispute arose between the B. of R.T. and the S.U.N.A. on the D.L. & W. RR. over rights to certain work and a suit was filed in the New York Court of Appeals which rendered an opinion dated January 24, 1952, holding, in part: **** In enacting the statute, Congress determined that, if decisions are to be made upon basic questions of railroad-employee relations, they must be made, if at all, by the designated agency 'peculiarly competent' to decide them; that, if disputes arise as to the meaning, application, or scope of agreements between railroads and unions involving labor relations, they must be read and construed, in the light of usage, practice, and custom, by the designated body most familar with them. * * *""

In Isgett v. Atlantic Coast Line Railroad Company, South Carolina Supreme Court (22 Labor Cases 67,390) held a trial court was without jurisdiction in a suit for restoration of seniority rights and time loss damages, saying:

"Sound congressional reason for the rule here applied, as stated in the opinions in the Solocum and Southern Railway cases, is the goal of uniformity in the interpretation of collective-bargaining agreements between the carriers and their employees, which should result from exclusive primary jurisdiction of the adjustment board created by the Railway Labor Act, and the consequent avoidance of unnecessary causes of friction in labor relations. This is illustrated by the case at bar. If the court should undertake to now decide the controversy, it would not bind the Board, to which the next similar controversy might be taken. It would seem that the presently firmly established rule of exclusive primary jurisdiction of the Board in such cases should be beneficial, in the long run, to both carriers and employees, and to the public. * * *" There are many, many more decisions expressing these same thoughts. In practical operation, we find the Division capped upon to function in this atmosphere:

The rules in effect on the major carriers are, in large part, standardized as the result of handling on a national basis for many years or because of having a common source, which, in turn, resulted in making a given rule or set of rules, effective on a virtually national basis. For example, when the Hours of Service Act was passed by the Congress in 1907 to become effective in 1908, a joint committee representing the Nation's major carriers and the operating brotherhoods negotiated a rule which was placed in the respective agreements of the participating railroads, verbatim. Similarly, when the Adamson 8-hour law was passed in 1916, a joint commission was established to negotiate changes in existing agreements to accommodate the rules to the new legislation. When the operation of the Nation's railroad was taken over by the Director General of the Railroads for the duration of the First World War, a number of rules changes were promulgated and ordered into effect on all carriers under Government control. The result has been to make, and continue in effect, the basic rules

of agreement which are currently in the agreements on most of the Nation's carriers giving these particular contracts a national uniformity not found in many other industries.

Along with this common background of inception, the railroad industry has had uniformity of interpretation and application of the rules by establishment of tribunals, on a national or regional basis, ofr that purpose, since shortly after the turn of the century. When the First Division commenced functioning in October 1934, these predecessor Boards had rendered decisions interpreting the very rules involved, in approximity 15,000 cases many of the decisions having been made by members of the committees which had negotiated the rules in the first instance. We refer to the decisions of Railway Board of Adjustment No. 1; U.S. Railroad Labor Board; the regional boards of adjustment established under the Railway Labor Act of 1926.

The members of the First Division, as originally constituted, took up their duties fully aware of this situation and, naturally, applied the precedent to be found in the prior decisions to similar disputes whereby approximately two-thirds of the cases disposed of from 1934 through 1945 (a grand total of 10,927) were settled without referee assistance. Adding these to the prior totals, means that in 1946, the First Division had in excess of 26,000 prior decisions for guidance (including nearly 11,000 of its own) which certainly should have been applied in similar facts involving the same or similar rules, to properly dispose of the case at hand.

At the present writing, the First Division has rendered a total of 20,323 awards, making in excess of 35,000 prior decisions involving substantially the same rules which have been in effect with little change for many years-some of them being more than half a century old. Obviously, the varieties of claims which can possibly arise under the rules have limits so that it is almost impossible for a dispute to arise today, involving interpretation and application of these rules which has not been decided from a half a dozen to 100 times in the past, often there are several decisions involving the same parties and the same identical rule. We say these prior interpretations illustrating proper application of the rules should be followed in cases presented to us today; i.e., that the weight of authority as found in prior decisions is controlling, absent a showing of clear error therein.

In establishing the cause of the admitted delays, it is necessary to determine whether the members of the Division are functioning to decide cases within their presumed understanding and ability and if not, where the fault lies. Awards of the Division are made effective by a vote of a majority. Before we can render an award either way, at least 6 out of the 10 members must vote in favor of the particular decision. If the case has been submitted to a referee, there are 11 votes--his and those of the 10 members, so 6 are necessary. From what we have shown here, it is readily apparent that one can ascertain if the respective members are functioning as such, by reviewing the awards for the purpose of determining: (1) how many are made without referee; (2) how many have been sustained, and how many have been denied, and (3) how many of those made by referees cover cases similar or identical to those which have previously been decided a number of times.

For our purposes here, we will confine our attention to the awards made without referee because they are concrete evidence the members of the Division met their duty and obligation to decide the issues. In cases where the claim was denied without a referee, it means that the labor members recognized it was without merit under application of the rule to the facts and in the light of our prior decisions; where the claim was sustained, it means the carrier members similarly functioned in recognition of a valid claim. Again emphasizing that comments here made are confined to comparing the conduct of the trainmen's representative with that of the carrier members, we have this picture of performance for the 4-year period, 1958 through 1961:

Of the 540 cases decided by the Division without a referee, 352 were trainmen's cases.

During this same period of time, the carrier members agreed to pay only seven claims. In closing on this subject. it is a matter of record that during the more than 11 years the present trainmen's representative has served as a member of the First Division, he has agreed to a denial of more than 900 claims, shown to be invalid in the light of the controlling weight of authority of our prior decisions. During that entire period-from July 15, 1952, to June 30, 1963, the carrier members have agreed to pay a total of just 22 claims. On these figures, we say the trainmen's representative has met his obligations and functioned as such, more than 900 times; the carrier members have responded, over an 11-year period, a total of just 22 times. This means that in all cases except those 22, if the trainmen's representative believed a given case had merit, it was necessary to handle it before a referee and persuade him to sustain it, if possible.

This is the crux of the whole situation with reference to what is causing the delay and has built up the backlog. In illustrating the sort of case handling involved in preparing a dispute for presentation to referees, we will give one example as pertains to each of the five carrier members, individually.

A. At the time the dispute covered by award No. 19372 was submitted to us, this Division had previously decided 16 similar cases involving the same parties and the same rule. Nevertheless, we were forced to spend some 2 weeks in briefing the case for referee, followed by a half a day of oral argument in order to obtain a sustaining award, which became No. 17 in the chain. Then, 2 years later, No. 18 was submitted. The same carrier member handled it as had handled No. 17 (award 19372); he refused to follow the other 17 decisions, and again we were forced to prepare written brief and argue the case as though the first time the question had arisen. Fortunately, the referee followed the prior decisions, sustaining the claim in award No. 20077.

B. Down through the years, the First Division had recognized its inability to resolve cases involving conflicting medical opinion and, where this was shown, had returned decisions ordering the parties to establish a three-doctor medical board for the purpose, with appropriate holdings on the question of compensation due the employee, if improperly withheld from service. As of the time the case resulting in award No. 20019 was decided-October 3, 1961--the Division had so held on its own motion, 35 times and, with referee assistance, some 40 other times. There was no money coming to the man in award No. 20019, and the carrier member subscribed to application of the controlling principles, resulting in the award being rendered by the Division without referee. Two months later we took up another case, involving the same identical principles, from the same railroad, but because the man there was entitled to payment, the carrier member would not follow our prior awards, even though we had just rendered an award on the issues. The work necessary to properly prepare that case for the referee spanned 7 weeks, plus nearly a day of oral argument, and again we were fortunate the referee was not led astray-he sustained the claim in award No. 20093.

C. A case now pending for referee decision involves two rules; one of them has been in effect since 1910, the other since 1911. The first one is specifically applicable to circus train service, and restricted by its terms to men doing that work; the second, expressly limits its application to men "in pool or irregular freight service." The carrier is in obvious violation by attempting to make application of the latter rule to a crew performing circus train work exclusively. The carrier member will not pay the claim which means we were compelled to brief the case for referee, necessitating more than 3 weeks work in developing the history of these two venerable rules and related decisions, in sufficient detail to inform a referee of the justness of the claim and prevent, if possible, rendition of an erroneous award, applying the "pool or irregular freight service" rule to a crew in circus train service.

D. In November 1959, we were confronted with a time claim under a rule specifically providing it was valid and payable if not declined by the carrier, in writing, within 30 days. The record showed without dispute, that the carrier had not complied within the time limit, and, obviously, the claim was valid as made. In a spirit of fairness, we discussed this with the carrier member handling it, offering to reduce the claim from 40 runaround payments to the 13 which the record showed were involved, even though the claim for 40 was valid under a literal application of the controlling rule. The carrier member refused to agree

to an award paying one red cent and we were forced to spend several days preparing a brief to prove the same carrier had contended for such compliance with the time limit rule when to do so meant a denial award. Again we were lucky, the referee sustained the claim in Award No. 19343.

E. The case involving this particular carrier member shows why we feel fortunate when we have been able to present sufficient evidence to convince a referee a claim is valid. In Award No. 17088, we had a claim where it was contended by the carrier, that it could use and compensate a yardman, working as an individual under a special agreement, under a rule specifically applicable to crews, as contrasted with an individual. Although we were able to show that the same carrier member had, himself, vigorously opposed applying a “crew" rule to an individual in a former case, the referee disregarded all the evidence and denied the just claim. We prepared a dissent from that award to prove its many

errors.

From these brief sketches, it can be seen that refusal by the carrier members to pay just claims is a prime cause of delay in processing our dockets. It must be remembered that the referees assigned by the Mediation Board cannot have any prior railroad background-they must be neutrals. Our rules have a tremendous background in history and precedent; many of them are extremely difficult for someone outside the industry to properly understand. So, if we have a just claim which the carrier members will not agree to pay, we must do what we can to fully acquaint the referee with all the evidence, including possibly 50 to 100 or more prior decisions. Then, sometimes we fail to persuade the referee to a sustaining award and are compelled to write a dissent in order to protect the rule or rules, and to limit the damage to the one decision. In other cases, we will prevail and the carrier members will dissent, endeavoring to detract from the soundness of the award. This means we must prepare a supporting opinion to protect it. All of this takes a great deal of time and while dissents or supporting opinions are being prepared, we cannot get other cases ready for referees.

This reply has been lengthy but, we hope, not unduly so. The reader will appreciate the necessity for information along the lines covered herein, in order to grasp why there is a delay in handling cases on the First Division which has no remedy within the framework of the act.

Question 5 (pt. 3). "If so, why has that machinery not been used?"

We have illustrated how provisions of the act have been invoked in an effort to cut into the backlog in the past and referred to other efforts which cannot be implemented unless the carrier will agree to employ them. In addition to this, the trainmen's representative on the First Division has repeatedly offered to enter into equitable arrangements which, if met in good part by the carrier members or those to whom they are responsible, would effectively dispose of every pending trainmen's case on this Board (some 1,326 at this time) in from 6 months to 1 year. The latest such proposal was made formally, in writing, under date of March 12, 1962, as follows:

*** I propose that the approximately 1,000 trainmen cases now docketed with the First Division be disposed of on the following basis:

"1. That we start the ball rolling by you assigning in blocks of 25, trainmen dockets to 1 or more of the carrier members.

"2. Where the issues involved have been decided by the Division in previous awards, that such award or awards be followed and applied.

"3. Where previous awards of this Division go to deny a claim or claims, the docket before us will be likewise denied.

"4. Where previous awards of this Division go to sustain the claim, the claim before us will likewise be sustained accordingly.

"5. No dockets will be referred to a referee except where there exists an honest and legitimate difference of opinion."

The suggestion was practical and fully workable but rejected by the carrier members in letter dated March 21, 1962, their spokesman saying:

"According to information available to me the last meeting of representatives of the Railway Labor Executives Association with members of the railroad territorial committees for the National Railroad Adjustment Board, for the purpose of discussing suggested remedies designed to expedite the adjudication of disputes docketed with the several divisions of the National Railroad Adjustment Board, was held on August 25, 1959. I have been informed that this discussion produced some constructive results, but perhaps not everything that was desired by the conferees. In my opinion, any suggestion or suggestions you may have