The opinion of the court was delivered by: MCILVAINE
There is little dispute as to the facts in this proceeding. On August 4, 1958, the National Mediation Board received a telegram from President W. B. Kennedy of the Brotherhood of Railroad Trainmen reading as follows:
'Account failure to reach an interpretation of discipline rule resulting in management inflicting discipline without first giving the employee a fair and impartial hearing as contemplated by the rule, also failure to reach settlement in revising the freight rule in the Youngstown District due to the Electronic Yard at Struthers, Ohio, have authorized train and yard men, Pittsburgh and Lake Erie Railroad, withdrawn from service six a.m., August 8, 1959.'
On the same date the Board proffered its mediation services under the provisions of Section 5, First (b) of the Railway Labor Act, 45 U.S.C.A. 155, subd. 1(b), on the dispute described in Mr. Kennedy's telegram as Case E-174 and requested the Brotherhood to postpone the strike date. The strike date was postponed in a telegram to the Board August 8, 1958.'
On the same date, August 5, 1958, the Pittsburgh and Lake Erie Railroad Company and The Lake Erie and Eastern Railroad Company, through their Director of Personnel, R. E. Black, made formal application for this Board's mediation services under Section 5 of the Railway Labor Act in a dispute described in Exhibits 'A' through 'G' attached to the formal application. This application was received in the Board's office on August 7, 1958, and was incorporated into Case E-174.
Through subsequent correspondence the Board ascertained that this dispute involved three requests of the Brotherhood for changes in rules and working conditions, also the adjustment of a considerable number of time claims.
On October 16, 1958, the Board ruled in a letter addressed to the representatives of the carrier and the organization that the three requests made by the organization for changes in rules and working conditions had been made in a form which satisfied the provisions under Section 6 of the Railway Labor Act and could be considered as proper notices thereunder.
The Board then assigned this dispute to a mediator for further handling which commenced in Pittsburgh on November 13, 1958. At that time the carrier took the position that the request of the organization for changes in the handling of cabooses at its East Youngstown Yard was a request involving additional expense which would be barred by the moratorium provisions of the national agreement between the carrier and the Brotherhood of Railroad Trainmen, dated April 5, 1957.
Mediation was recessed on November 20, 1958, for further consideration of the carrier's position by the Board. The carrier's contentions were considered by the Board in Executive Session on December 19, 1958, and the Board decided to docket the three requests for rules changes including the question of handling cabooses at its East Youngstown Yard as Case A-5927, and informed the parties that further mediation efforts would be extended.
A mediator was again assigned to this dispute on February 4, 1959. At that time the carrier representatives reiterated their position that the request of the organization for handling of cabooses at East Youngstown was barred by the moratorium provisions of the national agreement, above referred to, and informed the Board they were taking that question to the Disputes Committee set up under the national agreement of April 5, 1957. Mediation was again recessed for Board consideration on February 19, 1959. Following a decision made by that Disputes Committee, the Board again set this case for mediation commencing on April 14, 1959.
At this juncture the carrier took the position that the request of the organization for the changes in the handling of cabooses at East Youngstown was a question involving the interpretation of Article 10 in the carrier's agreement between the parties, and should be sent to the First Division of the National Railroad Adjustment Board, although the carrier had previously taken the position that the request was for a rule which was barred by the moratorium provision of the April 5, 1957 agreement.
The National Mediation Board reviewed the entire handling of this dispute since its inception on August 5, 1958, and decided that a proffer of arbitration should be made to the parties under the Railway Labor Act on the three requests for changes in rules and working conditions including the item for handling of cabooses at East Youngstown.
This arbitration offer was made to the parties in the Board's letter of June 30, 1959. Arbitration was declined by the Brotherhood of Railroad Trainmen on July 10, 1959. The Board so informed the carrier and the organization in its letter of July 14, 1959, and on August 14, 1959, closed its file on Case A-5927 on account of refusal of the organization to arbitrate this dispute.
It will be noted from the above that when the Board proffered its mediation services under Section 5, First (b) of the Railway Labor Act on August 5, 1958, the Board had no knowledge of what items were in dispute between the parties. This information was developed after the proffer of mediation had been made, and was contained in the ...