Before MAJOR, KERNER and MINTON, Circuit Judges.
This appeal is from an order of the District Court dismissing the complaint in an action brought to enforce an order of the National Railroad Adjustment Board.The complaint alleges that plaintiff as sole bargaining agent for all yardmasters employed by the corporate defendant entered into a contract with said defendant under date of April 1, 1944. Rule 7(a) of this contract fixed and established the seniority rights of all yardmasters, and among other things provided that any yardmaster subsequently appointed to a regular position should have seniority as of the date he first performed service as a yardmaster, with the proviso that such date must be subsequent to the date of the contract, to-wit, April 1, 1944.
The complaint alleges that the defendant railroad company breached the said contract by subsequently assigning to the defendant C. P. Barker a seniority date of December 12, 1941, in violation of Rule 7(a) of the contract because (1) Barker's name did not appear on any seniority roster in effect at the time the contract was entered into, (2) Barker had not been assigned to a regular position as yardmaster on December 12, 1941, and (3) the seniority date granted Barker was not subsequent to the date of said contract, to-wit, April 1, 1944.
The complaint further alleges that because of the wrongful seniority date assigned to Barker a dispute arose between the plaintiff and the defendant railroad company which was subsequently submitted to the National Railroad Adjustment Board for determination. A hearing was conducted by the Board, and on June 19, 1946 it made an award in favor of plaintiff, holding that the seniority date awarded Barker by the carrier was in violation of Rule 7(a) of said agreement. This award was followed, so it is alleged, by an order of the National Railroad Adjustment Board ordering the defendant railroad to make the same effective, and that upon its failure and refusal to comply the instant suit for enforcement was commenced. Attached to and made a part of the complaint is a copy of the contract entered into April 1, 1944, by and between plaintiff and the railroad defendant, and also attached to the complaint is Exhibit B, which contains the proceedings before the Adjustment Board and which includes what is designated as a "Statement of Claim," "Findings," "Award," and "Order."
Upon motions filed by both the railroad defendant and the defendant Barker, the court entered its order of dismissal which was predicated upon three grounds, namely, (1) the order of the Adjustment Board sought to be enforced fixed no time limit for compliance, (2) the award and order were too vague and indefinite for enforcement, and (3) the defendant Barker had no notice of the hearing before the Adjustment Board. The reasons assigned by the District Court for dismissal of the complaint constitute the contested issues here.
The issue as to whether the instant enforcement proceeding may be maintained upon an order of the Adjustment Board which fixes no time limit for compliance by the carrier presents a perplexing problem.We are aware of no case where the point has been directly raised and decided. We are required, therefore, to interpret the pertinent provisions of the Railway Labor Act. Sec. 153, Title 45 U.S.C.A., prescribes the powers and duties of the various Adjustment Boards therein provided for. Subdivision 1, Pars. (o), (p) and (q) are pertinent to the instant problem.
Par. (o) provides: "In case of an award by any division of the Adjustment Board in favor of petitioner, the division of the Board shall make an order, directed to the carrier, to make the award effective and, if the award includes a requirement for the payment of money, to pay to the employee the sum to which he is entitled under the award on or before a day named."
Par. (p) so far as now material provides: "If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file in the District Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the carrier operates, a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises."
Par. (q) provides: "All actions at law based upon the provisions of this section shall be begun within two years from the time the cause of action accrues under the award of the division of the Adjustment Board, and not after."
The plaintiff contends that no time limit for compliance with the order is necessary because the award upon which the order is predicated does not include a requirement for the payment of money. Plaintiff, in support of this contention, relies solely upon the language of Par. (o).It does not mention or take into consideration either in its brief or reply brief the provisions of Pars. (p) and (q).
We think it must be admitted that Par. (o) standing alone is susceptible and perhaps would require the construction attributed to it by the plaintiff. No cases need be cited, however, in support of the well known rule of construction that all the pertinent provisions of an act must be considered in determining the intent of the legislative body.
We suppose that no one would claim that the beneficiaries of an award by the Adjustment Board have any right to enforcement except in the manner which Congress has provided. It must be obvious that Par. (o) provides no authority or means for enforcement. If that were the sole provision contained in the Act, plaintiff would be wholly without a remedy to enforce the award.
Plaintiff's right to enforcement, if it has any, as well as the court's jurisdiction, if such there be, is contained in Par. (p).This is recognized in plaintiff's complaint where it is alleged "That jurisdiction of this court is based upon the provisions of Title 45, Section 153(p), commonly referred to as the Railway Labor Act." By Par. (p) the beneficiary of an award is authorized to institute an action for enforcement of an order based upon such award only if the carrier has failed to comply with such order "within the time limit in such order." In view of this unambiguous language, we are not able to discern either the authority of the beneficiary of an award to seek its enforcement or the jurisdiction of the court to entertain such action in the absence of a time limit contained in the order. Admittedly, it is difficult to reconcile this apparent conflict between Pars. (o) and (p). It may be that it was intended under Par. (o) to leave it optional with the ...