"It follows that authority to concur in an agreement of settlement does not imply without more authority to represent the employee in Board proceedings, or the latter the former. This is true when the authority is given to the collective agent as it is when it is given to another." (p. 746; see, also, pp. 733–734, 736, 738.) (Italics supplied.) It also appears clear from the Court's decision that the individual's rights with respect to grievances cannot be eliminated by the collective contract: "The collective agreement could not be effective to deprive the employees of their individual rights. Otherwise those rights would be brought within the collective bargaining power by a mere exercise of that power, contrary to the purport and effect of the act as excepting them from its scope and reserving them to the individuals aggrieved. In view of that reservation the act clearly does not contemplate that the rights saved may be nullified merely by agreement between the carrier and the union." (p. 744, also p. 740, ftn.) From what has been said above, it must be concluded that the collective agreement cannot legally restrict the individual employee as to the person he may designate as his representative for the settlement of his grievance. The statute guarantees his right to select the collective representative or a minority union or any other person otherwise qualified to act in this capacity. My conclusions may be summarized as follows: (1) the Elgin decision does not require reconsideration of the opinion expressed in 1942 that the collective bargaining representative has a sufficient interest in the disposition of grievances to validate, under the Railway Labor Act, a provision in the collective bargaining agreement obligating the carrier and the collective representative "to confer and negotiate with each other, in an attempt to reach a settlement" of all grievances. (2) The agreement, however, under the decision of the Supreme Court in the Elgin case, cannot legally preclude an aggrieved employee from also negotiating with the carrier, personally or through an individually chosen representative, for the settlement of his grievance. He may designate as his representative the union holding the contract or any other union or person otherwise qualified to act. He may negotiate, personally or by representative, whether or not the collective representative determines to pursue the matter. And the settlement of the grievance, to be binding on the individual employee, must have been authorized by him. Respectfully yours, TOM C. CLARK. TERMS AND CONDITIONS OF EMPLOYMENT DURING GOVERNMENT POSSESSION OF COAL MINES The agreement of May 29, 1946, covering the terms and conditions of employment during the period of Government possession of the bituminous coal mines superseded the provision in section 15 of the National Bituminous Coal Wage Agreement of April 11, 1945, which provided an opportunity for renegotiation and termination of the terms and conditions of that contract at any time either party desired after March 1, 1946. The agreement of May 29, 1946, must be interpreted and applied in the light of the objectives of the War Labor Disputes Act (57 Stat. 163), under which possession of the mines was taken by the United States and which sets forth in detail the method whereby changes in terms and conditions of employment may be effected. The SECRETARY OF THE INTERIOR. NOVEMBER 15, 1946. MY DEAR MR. SECRETARY: Under date of October 31, 1946, I sent you an informal letter of advice relative to further negotiations under the agreement which you executed on May 29, 1946, with the representatives of the United Mine Workers of America. My letter concluded by saying: "This is to advise that in my opinion there is no legal obstacle to such further negotiations. Nor is there any legal impediment to modification of the existing contract so as to reflect changes in wages and other terms and conditions of employment, provided such modification, if any, is satisfactory both to the Government and to the United Mine Workers of America. This is true whether or not section 15 of the agreement of April 11, 1945, is deemed applicable in the present situation, and accordingly I do not believe it necessary at this time to pass upon any question relative to that section. The negotiations can, of course, proceed without prejudice to the rights of either party." By letter dated November 4, 1946, you advised me that it is of importance to both parties "to know whether section 15 of the 1945 contract does in fact apply" to the present conferences. You accordingly requested my views on that question, and upon your return to the city I gave them to you informally. Today you have requested a formal confirmation, which I am now pleased to give you. The agreement which you and the miner's union executed on May 29, 1946, opens with the recital that "this agree* * covers for the period of Government possession the terms and conditions of employment in respect to all mines in Government possession *" It goes on ment to provide in paragraph 1 that "except as amended and supplemented herein, this agreement carries forward and preserves the terms and conditions contained in all joint wage agreements effective April 1, 1941, through March 31, 1943, * * * and the National Bituminous Coal Wage Agreement, dated April 11, 1945." The agreement of April 11, 1945, just referred to, contains the following provision, which forms the second paragraph of section 15: "At any time after March 1, 1946, either party may give ten days' notice in writing of a desire for a negotiating conference upon the matters outlined in said notice. The other party agrees to attend said conference. At the end of fifteen days after the beginning of such negotiating conference either party may give to the other a notice in writing of the termination of this agreement, to be effective five days after the receipt of such notice." In my opinion the provision which I have just quoted is no longer in force. The agreement of May 29, 1946, expressly provides that it "covers for the period of Government possession the terms and conditions of employment." It thereby specifies the period during which it is to remain in force and, accordingly, "amends and supplements" section 15 of the 1945 agreement, which provided an opportunity for renegotiation and termination of the terms and conditions of that contract at any time either party desired after March 1, 1946. This conclusion is reinforced by an examination of the provisions of the War Labor Disputes Act (June 25, 1943, c. 144, 57 Stat. 163, 165), under which possession of the mines was taken by the United States. (See Executive Order No. 9728 dated May 21, 1946, 11 F. R. 5593.) The provisions of that act contemplate, first, that the operations of plants and mines in Government possession shall continue without interruption, and, second, that there shall be an equitable approach to the problem of fixing terms and conditions of employment in such plants and mines. The contract here under discussion must be interpreted and applied in the light of those objectives. The War Labor Disputes Act sets forth in detail the method whereby changes in such terms and conditions of employment may be effected. It specifically provides, in section 5, that after possession has been taken by the Government "the Government agency operating such plant, mine, or facility, or a majority of the employees of such plant, mine, or facility or their representatives, may apply to the National War Labor Board for a change in wages or other terms or conditions of employment in such plant, mine, or facility." This provision was designed to enable the National War Labor Board to take action from time to time to meet changing conditions. The successor to the National War Labor Board, for the purpose of making determinations under section 5 of the act, is now the National Wage Stabilization Board (see Executive Order No. 9672, dated December 31, 1945, 11 F. R. 221). That Board on May 31, 1946, issued an order promulgating the terms and conditions of employment established by the agreement of May 29, 1946. Nothing in the agreement of May 29 purports to limit or alter in any way the right and privilege of either party to the agreement under section 5 of the act to seek from time to time any necessary or desirable change in terms and conditions of employment. It may be that the guarantee which Congress has given in section 5 cannot be contracted away. That is a question which I do not have to decide in the present case because I do not believe that you and the union representative intended to contract it away. The agreement you entered into cannot possibly be so interpreted, under its terms. It must follow, therefore, that even though section 15 of the 1945 agreement is not applicable, the employees of the mines may at any time apply to the National Wage Stabilization Board to request changes in terms and conditions of employment. If I can be of further assistance to you, please let me know. Sincerely yours, TOM C. CLARK. DELEGATION OF AUTHORITY UNDER FEDERAL TORT CLAIMS ACT Under section 403 (a) of the Federal Tort Claims Act the head of a Federal agency may delegate to more than one subordinate official of the agency authority "to consider, ascertain, adjust, determine, and settle" claims. The SECRETARY OF THE INTERIOR. JANUARY 17, 1947. MY DEAR MR. SECRETARY: I refer to your request for my opinion whether, under section 403 (a) of the Federal Tort Claims Act (approved August 2, 1946, c. 753, 60 Stat. 812, 842), the head of a Federal agency may delegate to more than one subordinate official of the agency authority "to consider, ascertain, adjust, determine and settle" claims. Section 403 (a) reads in pertinent part as follows: "Subject to the limitations of this title, authority is hereby conferred upon the head of each Federal agency, or his designee for the purpose, acting on behalf of the United States, to consider, ascertain, adjust, determine, and settle any claim against the United States for money only, accruing on and after January 1, 1945 * *" [Italics supplied.] This section does not require that the head of an agency shall designate a single individual to handle claims. The authority to adjust claims is vested in the head of the agency. The power of delegation is subject to his discretion. He may assign one claim to A and another to B, or he may delegate to them, respectively, the authority to adjust particular classes or groups of claims. Each becomes "his designee for the purpose" within the letter and also within the spirit of the statute. The question submitted by you is, therefore, answered in the affirmative. Sincerely yours, 798037-49- -34 TOM C. CLARK. |