Felix Frankfurter

“ Apart from some lower court's dicta, there is no reason for holding, in the abstract, that any possible award would be rendered void by failure to give notice to an outsider even if related interest that cannot be compulsorily joined as a party to the proceeding. The Board has jurisdiction over the only necessary parties to the proceeding and over the subject matter. If failure to give notice be treated as an error, in an award in favor of Railroad it would constitute at best harmless error which could not be made the basis of challenge by Railroad, Telegraphers or Clerks. ”

“ Railroad asserts that this dilemma is inevitable and will entail continuing industrial friction, the possibility of conflicting awards to both unions, and accumulating claims to back pay or damages which might have been avoided had notice been given and a valid award been rendered. If the award is against it, Railroad claims that it is at a loss to know whether to comply and be subjected both to suits to enjoin compliance and further Board proceedings by the third party, or to refuse to comply and attempt to defend an enforcement proceeding brought under § 3, First (p) . ”

“ One thing is unquestioned. Were notice given to Clerks they could be indifferent to it; they would be within their legal rights to refuse to participate in the present proceeding. Clerks here have not attempted to intervene. They have merely stated an intention to bring a separate proceeding in case they are affected by an award in this case. Indeed the Railroad refers to an understanding between Clerks and Telegraphers whereby the one will not intervene in proceedings initiated before the Board by the other, but will press its claims independently. ”