Joint Council of Dining Car Employees Local 370 PARTIES TO DISPUTE:




STATn=T OF CLAIM: (a) Class of the Joint Council of Dining Car
 Employees Local #370 on the property of the Penn
 Central Transportation Company for and behalf of employees Madaline
 Wyleczuk, John M. McGrath and Eugene Rivera et al, who were denied their
 working rights on Trains ;160 and #161 when the Peas Central Transporta
 tion Company on April 29, 1973 unilaterally put on these trains in the
 Buffet Coach and the Parlor Lounge Cars employees of another Union (Food
 Workers). These trains were operated within the limits of the low Raven
 Region and the other Union (Food Workers) did not haw a collective
 bargaining agreement covering this territory. In so doing the Penn
 Central Transportation Company not only violated the collective bargain
 ing agreement of Local 370, but did this to circumvent in particular
 Rule 6 paragraph 3 of the Agreement dated October lot, 1953, which was
 and is still the recognized collective bargaining agreement, including all
 the supplemental amendments.

 (b) That the Penn Central Transportation Company make these employees whole for all. wages, vacation time and any fringe benefits that may have been impaired by this action on the pert of the Carrier. That the Carrier be admonished to adhere to the Collective Bargaining Agreement an well as Section 6 of the Railway Labor Act.

 OPINION OF BOARD: Analysis of the instant record indicates that,
 although voluminous, it is substantively anemic and
 factually sparse. Although the claim references three named claimants and
 includes the comprehensive designation et al there is no support in the
 record for a finding that other than the t e, who were formerly employed
 on Trains 160 and 163 (Hew York to Boston and return) are covered by the
 claim.

 An nearly as we can determine frost this record the following are the operative facts: Carrier until April 29, 1973 provided buffet coach and parlor lounge service on Trains 160 (Hew York to Boston) and 163 (Boston to Hew York). Claimants, based in Hew York, worked these runs and made one round trip each day. Effective April 29, 1973 Carrier discontinued food service on those trains and initiated such service on Trains 179 and 176 (Washington to Boston and return). Claimants had an opportunity to bid on


these new positions but elected not to do so. Claimant John M. MoCkrath, who in the Organisation's General Chairman, protested these changes before they were initiated and filed the instant claim after the changes, alleging violation of various schedule agreements as well as the Merger Protective Agreement. The claim was handled through various stages on the property without resolution and was appealed to our Hoard.

 While the matter was pending before our Hoard, and before the record vas closed by receipt of ex parts and reply subaiasion, the General Chairman and Carrier officials renewed discussions on the property on July 1, 3 and 9, 1974. Carrier maintains that an oral agreement to settle the claim was reached during these discussions and commemorated in a letter of July 19, 1974 from its Manager-Personnel & Labor Relations to General Chairman McGrath. That letter reads as follows:





Carrier avers that following the alleged settlement, General Chairman McGrath advised that the International Secretary-Treasurer of the Union refused to honor the settlement and refused to withdraw the claim from the Hoard. Carrier therefore urges that the claim be dismissed as moot !n that it was settled on the property and cites substantial authority in the Awards of the various Divisions for this position. Carrier also contended strenuously in its ex parts anbmiesian that the claim was untimely appealed to our Hoard. Finally, Carrier's advocate raised a jurisdictiones issue in oral argument in this case, to wit: that the claim is premised upon alleged violations of the Berger Protective Agreement which contains its own exclusive dispute settlement machinery and, accordingly the claim is outside the scope of this Hoard
                    Docket lnaber DC-20760


The Petitioner Organization an behalf of the employees contends that the General Chairman had no authority to settle the claim or to arrange for the withdrawal of the claim frog the Third Division. Additionally, the Petitioner denies that YeGrsth did in fact agree to the. settlement referenced in the July 19, 1974 letter and contends that Sam is a deliberate attempt fraudulently to mislead the Hoard. Alternativel asserts that the question of settleeaat is "a new issue that was not part of the handiiag of the claim on the property and cannot be considered by the Hoard." Petitioner also denies that the claim was not timely processed to our Hoard, citing numerous Awards to support its method of computing the tine requirements for filing rather than that used by Carrier.

 We have reviewed carefully the petition for dismissal of the Carrier, the numerous grounds cited therefor and the reply argments of the Petitioner with respect to each. We shall treat these natters seriatim as they were raised on the record. With respect to the timeliness question, we understand that this defense was abandoned in oral argument and we need not address it further herein. The notion for dismissal based on settlement and mootness, an well an the jurisdictional objection flowing front allegation of Major Protective A and may not be ignored.

 Our review of the record convinces us that there was a settlement between General Chairman McGrath and Carrier's Manager-Personnel & Labor Relations an or about July 9, 1974. Petitioner correctly asserts that the letter of July 19, 1974 is not a jointly executed Letter of Agreement and my not itself be considered the settlement agreement of the parties. Hut there is no Agreement provision to which our attention has been drawn which requires a written settlement agreement, albeit such a practice would seen advisable to avoid situations such as the one presented herein. Nonetheless, it is well understood that oral settlement agreements, premised upon the informed good faith and integrity of the respective representatives, are coweonplace in the handling of grievances. Ivan more basic is the accepted principle of labor relations that settlements in grievance handling by duly authorized representatives are final and binding on both parties and, absent express contractual requirement, are not subject to ratification or rejection by others awq from the table. To hold otherwise would be to undermine the integrity and validity of the lower level grievance procedures on the property which are designed to facilitate and encourage prompt, equitable and binding resolution of claims short of arbitration.

 While there in not a signed settlement agreement on the record, and the July 19, 1974 letter is not itself that aasmeat, the letter may be taken an some evidence that such a settlement was had. We are also impressed by the lack in the record of any disavowal. whatsoever frog General Chairman Mefath that the settlement was made. Rather, all such protestations come from the International secretary-Treasurer who avers
                    Award Number 21011 Page 4

                    Docket Number DC-20760


that McGrath did not have authority to settle end, therefore, could not make an agreement to settle the instant,claia. We do not concur. The General Chairman on the property customarily and ordinarily processes claims, as did McGrath in this case. There can be no donbt.that he is cloaked with actual and apparent authority to settle such claims in a final and binding fashion. Moreover, the evidence of record taken as a whole, even though circumstantial and not direct, compels a conclusion that he did settle this claim on the property after it was submitted to this Hoard. The Agreement is silent on the point but it cannot be gainsaid that the policy of Section 3. First of the Railway Labor Act is to encourage and promote such settle of an Award disposing of the claim.

 7n consideration of the entire record and for the reasons set forth hereinabome we conclude that the claim is snot. An easement to settle has been made on the property and, accordingly, the claim shall be dismissed and the parties directed to implement the settlement agreement reached on the property.

        FINDIM: The Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Hoard her jurisdiction over the dispute involved herein; and

        That an agreement to settle was reached on the property.


                    A W A R D


        The claim. is dismissed and the parties are directed to implement the settlement agreement reached o


                        RATIONAL. RAILROAD ADJVJSTM= HOARD

                        By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 31st day of March 1976.
        LABOR METER'S DISSENT TO AWARD 21011, DOCKET DC-20760


Award 21011 is not only erroneous but lacks a basis in reason or fact, violates well-established principles of this Board as to when a record becomes closed prohibiting the submission of new issues, new evidence or exhibits, twists the facts to lend support to a decision not based on reason or fact, exceeds the jurisdiction granted to this Board by making an Agreement for the parties and e
Docket LK;-20760 should not have presented the problems evident in most cases wherein facts and circumstances are presented by each party and are often contested and/or disputed. The Carrier in Docket DC-20760 did not present any facts so there was no conflict with the facts presented by the Employes. The record shows that Carrier asked for, and was granted, the maximum amount of time allowed to reply to the Employes' Ex Parte Submission, including the facts detailed therein. But after asking for all of this time to make reply, the Carrier wrote the Executive Secretary stating "The Carrier does not desire to file a reply".

 The Carrier did not deal with the merits of the claim in its Ex Parte Submission merely making a petition to the Board to dismiss the claim on two procedural grounds. The Employes' Ex Parts Submission addressed itself to the merits of the claim making material factual statements. The Carrier advised the Third Division that it did not desire to file a reply to the Employes' Ex Parte Submission leaving the material factual statements contained therein concerning t The following Awards involving such situations were twice presented to Referee Eischen for consideration at two panel argument sessions regarding Docket DC-20760 before Award 21071 was adopted:

    Award 19927 (Lieberman) -


        "In addition to the foregoing, Petitioner did not elect to file a rebuttal statement to Carrier's ex parts submission thus leaving material factual statements uncontroverted and undenied. See Award 19849 and First Division Awards 22230, 22231, and 19808."


        Award 20041 (Sickles) -

LABOR MMER'S DISMIT TO AWARD 21011, DOCKET DC-20760 (Cont'd)

              Awards of this Division have concluded that

    when material statements are made by one party and

    not died by the other party, so that the allega

    tions stand unrebutted, the material statements are

    · accepted as established fact (especially when there

    is both time and opportunity to deny). See Awards 9261

    (Hornbeck), 12840 (Hamilton), 14385 (Wolf). See also

    Awards 14399 (Lynch), 15035 (Franden) and 18605 (Rimer)."

    The Statement of Claim presented in Docket DC-20760 is shown in Award

21011. This Statement. of Claim clearly set forth the crux of the dispute,
 stating in part:

        "(a) Claim of the Joint Council of Dining Car Employees Local #370 on the property of the Penn Central Transportation Company for and behalf of employees Madeline Wyleczuk, John M. McGrath, and Eugene Rivera et al, who were denied their working rights on Trains #160 and #161 when the Penn Central Transportation Company on April 29, 1973 unilaterally put on these trains in the Buffet Coach and the Parlor

        · Lounge Cars employees of another Union (Food Workers). These trains were operated within the limits of the New Haven Region and the other Union (Food Workers) did not have a collective bargaining agreement covering this territory.


Award 21011, considering the facts set forth in the Statement of Claim and fully detailed in Docket DC-20760, states in part:

        "Analysis of the instant record indicates that, although voluminous, it is substantively anemic and factually scrarse. Although the claim references three named claimants and includes the comprehensive designation et al, there is no support in the finding that other than the three, who were formerly employed on Trains 160 and 163 (New York to Boston and return) are covered by the claim.


        "As nearly as we can determine from this record the following are the operative facts: Carrier until April 29, 1573 provided buffet coach and parlor lounge service on Trains 160 (New York to Boston) and 163

LABOR MEMBERIS DISSErP' TO AWARD 21011, DOCKET DC-20760 (Cont'd)

        "(Boston to New York), Claimants, based in New York, worked these runs and made one round trip each day. Effective April 29, 1973 Carrier discontinued food service on those trains and initiated such service on Trains 179 and 176 (Washington to Boston and return). Claimants had an opportunity to bid on these new positions but elected not to do so. Claimant John M. McGrath, who is the Organization's General Chairman, protested these changes before they were initiated and filed the instant claim after the changes, alleging violation of various schedule agreements as well as the Merger Pratective Agreement. The claim was handled through various stages on the property without resolution and was appealed to our Board."


The "operative facts" set forth in Award 21071 are as far fetched and illogical as the determination regarding the alleged agreement to settle the claim. Award 210)1 states "Analysis of the instant record indicates that, although voluminous, it is substantively anemic and factuaZ7,y sparse". Actually, Award 21071 is "substantively anemic" or worse when correct facts are ignored and replaced by what are alleged to be facts which are not supported by the record and/or the Statement of Claim which, if they had been read and considered, reveals the actual facts. Award 21011 is "factually sparse" in terms of considering the fasts detailed in the record or in terms of providing a sound basis for what it put into Award 21011 as being the basis for and/or the cause of the dispute in Docket DC-20760.

 If the Statement of Claim-alone had been read and considered, it should have been apparent that the trains involved in the dispute were No. 160 and No. 161 not trains No. 160 and No. 163 as stated in Award 21011. Contrary to what Award ?1011 states, the Carrier did not discontinue food service on trains No. 160 and No. 161. The food service was continued on these trains but by using employes not covered by the applicable Agreements to man or work these trains. That was what the dispute was ell about as the Statement of Claim clearly revealed.

 As there was no substitution of food service on trains Nos. 179 and 176 for the food service on trains Nos. 160 and 161 as Award 21011 states, there is hardly any need to refute the statement in Award 21011 reading "Clai.-ants had an opportunity to bid on these new positions but elected not to do so".
 LABOR MEMBER'S DISSENT TO AWARD 21011. DOCKET DC-20760 (Cont'd)

 The two paragraphs in Award 21071 supposedly detailing the "operative facts" contain a "voluminous" misconstruction of what the undisputed and uncontroverted facts were in this dispute. Regardless of the size or extent of the record, the facts contained in the record should be considered to adjudicate a dispute and the decision should be based on facts rather than fantasy as in Award 21011.

 The basis for the decision in Award 21011 is that the claim was moot because it was settled by agreement between the parties on the property. Yet the AWARD is "The claim is dismissed and the parties are directed to implement the settlement agreement reached on the property". This is an admission within Award 21011 itself that a settlement of the claim had not yet been made, i.e., the case was not withdrawn from the Board and no money payments were made, which were the two terms or conditions of the alleged Agreement.

 Award 21011 states "Carrier maintains that an oral agreement to settle the claim was reached during these discussions and co=Memorated in a letter of July 19, 1974 from its Manager-Personnel & Labor Relations to General Chairman McGrath". The last pag pointed out that the Carrier was being dishonest, stating "The Carrier's petition for the Board to dismiss the claim because a cash settlement has been made and/or an agreement made to settle the claim on the property, and, therefore, the claim is moot is untrue and a deliberate attempt to fradulently mislead the Board and should not be allowed".

 Award 21011 states "While there is not a signed settlement agreement on the record, and the July 19, 1974 letter is not itself that agreement, the letter may be taken as some evidence that such a settlement was had". This is entirely wrong because this allowed raising issues before the Board that were not presented on the property, allowed new evidence to be presented and/or accepted exhibits that were dated after the dispute was submitted to the Board (in fact dated after all the normal extensions of time requested by the Carrier for filing its Ex Parte Submission had ran out). But even more important is the fact that Referee Eischen's attention was specifically drawn to the fact that the July 19, 1974 letter was fradulent evidence.

 Ea each of the panel argument sessions regarding Docket DC-20760 the following statements, which appeared on page 2 of the Carrier's Ex Parte Submission, were pointed ou
                        -4-

LABOR MEMBER'S DISSENT TO AWARD 21011. DOCKET DC-20760 (Cont'd)

 "On July 17, 1974, General Chairman McGrath, without further explanation, advised Mr. Blake that Mr. Richard W. Smith, Secretary-Treasurer of the Dining Car Employees Union refused to honor the agreed-upon settlement and refused to withdraw the claim from the Board. and

        "**- The terms of this agreement, which are set forth in Mr. Blake's letter of July 19, 1974, Attachment 'A', provided that only Claimants Madeline Wyleczuk and John M. McGrath were involved in the dispute and that the General Chairman would arrange to have the claim withdrawn from the Board in consideration of the payment of $250.00 to each Claimant, Madaline Wyleczuk and John M. McGrath, as complete and final settlement of the claim. The Carrier has arranged to pay the Claimants the agreed-upon sums."


Award 21011 states "Carrier maintains that an oral agreement to settle the claim was reached during these discussions and commemorated in a letter of July 19, 1974 from its Manager-Personnel & Labor Relations to General Chairman McGrath. That letter reads as follows: NN*". Award 21011 after citing "that letter" in full states "Carrier avers that following the alleged settlement, General Chairman McGrath advised that the International SecretaryTreasurer of the the claim from the Board". But do you commemorate a settlement that has not been reached and/or has been rejected? If you do commemorate it, what is the purpose of such commemoration?

 The Carrier stated that on July 17, 1974 the settlement was refused. Then, pray tell, what was the purpose of the Carrier (two days after it admits being advised that there was no existing agreed-upon settlement) writing the July 19, 1974 letter which "commemorated" an oral settlement which the Carrier says had already. been rejected. The dates the Carrier itself entered into the record show the obvious purpose was to fraudulently establish there was an oral agreement to settle the dispute. The Carrier stated "Arrangements have been made to compensate the employees accordingly" but no money payments were actually made. The Carrier did not intend to make money payments as two days

                        -5-

LABOR 1aER'S DISSENT TO AWARD 21011, DOCKET DC-20760 (Cont'd)

 prior to the July 19, 1974 commemorating letter the Carrier states it had been advised the settlement, if in fact proposed, was rejected. The Employes pointed out that the record shows no evidence of monetary payments being made, though such evidence surely would have existed if payments had been tendered, and proof of money paynents should have been presented. The reason no evidence of money payments was presented was because such evidence did not exist and this clearly showed that an Agreement had not been consummated and further showed that the Carrier knew there was no such Agreement.

 The record in this regard shows the Carrier desperately wished to reach an Agreement to settle the dispute because the Carrier had nothing to offer on the merits, but being unable to obtain such an Agreement the Carrier proceeded to fraudulently create an Agreement to settle the dispute for whatever value it might have. The pathetic part of it is that Award 21011 going counter to the record took the bait - hook, line and sinker - and swallowed the story that there was an Agreement consummated to settle the claim and thereby endorsed the Carrier's fraud.

 The Carrier did not make any comnents on the merits of the dispute in its Rc Parte Submission and elected not to make a reply to the Employes' Ex Parte Submission. The only exhibit nresented by the Carrier was Exhibit A to the Carrier's Ex Parte Submission, which is the letter dated July 19, 1974 quoted in Award 21011. The Employes' letter of intention to file an Ex Parte Submission, closing the record on the property, is dated February 8, 1974. The final date for Ex Parte Submissions, after four extensions of time requested by the Carrier, was July 10, 1974. The July 19, 1974 letter came much too late to be considered as an issue raised on the property and, hence, properly before the Board for consideration. If the Carrier had complied with the Third Division's requests and/or i to the Third Division. The Carrier failed to comply with the Executive Secretary's instructions but its Ex Parte Submission.

    Referee Eischen was presented ample Award authority on the following points:


        (1) Awards showing that the record is closed upon giving a Letter of Intent to file an Ex Parte Submission with the Third Division:


        14355 (Ives), 20123 (Blackwell), 20587 (Sickles), 20773 (Sickles), 19832 (Sickles), 18120 (Dorsey).

IABOR MEMBER'S DISSENT TO AWARD 21011, DOCKET DC-20760 (Cont'd)

        (2) Awards showing that nevi issues cannot be raised for the first time before this Board:


        4-3245 (Eischen), 4-3280 (Eischen).


    (3) Awards showing that new evidence cannot be presented to the Board:


        2-6883 (O'Brien), 16053 (Kenan), 20?14 (Sickles), 20558 (Lieberman), 20598 (Eischen), 20607 (Sickles), 20620 (Sickles).


        (4) Awards showing that exhibits dated after the date the dispute was submitted to the Board must be rejected and cannot be considered as evidence by the Board:


        1,3029 (Hall), 18635 (Devine).


        (5) Awards showing that it must be proved an alleged oral understanding or agreement was reached:


        17060 (Dugaa), 12251 (Seff), 20190 (Sickles).


        (6) Award showing that a party should not be faulted for engaging in discussions or attempts to settle a dispute:


        4-3289 (Eischen).


        (7) Awards showing that the Board has no power to make Agreements for the parties but is limited to applying and/or interpreting Agreements already made:


        4480 (Carter), 18423 (OBrien).


The facts in Docket DC-20760, Award authority, and firmly-established principles of the Third Division were all ignored when Award 21011, written by Referee Eischen, was adopted by a Majority comprised of Carrier Members and Referee Eischen. Referee Eischen's adamant refusal to consider the facts and Award authority (and all. of the points detailed herein were presented - many of them for the second time when the case was reargued) or to correct the obvious errors in Award 21011 (a revision of the original proposed Award resulted only in correction of a typographical omission and a punctuation correction) leaves room for doubt as to his ability to perform the function as detailed in Section 3 First (1) of the Railway Labor Act, i.e., "a neutral person, to be known as 'referee', to sit with the division as a member thereof and make an Award".
 LABOR MOER' S DISSENT TO AWARD 21011, DOCKET DC-20760 (font ~d)

 Award 21071 thwarts the purpose for which the National Railroad Adjustment Board was created, which is to adjudicate disputes by interpreting or applying agreements as written by considering the facts and data in evidence.

 I hereby register the strongest possible dissent to Award 21011 which is at the very best a travesty of justice and/or the adjudicating process.

                                    )614T- -4


                                  J. P. Erickson

                                  Labor Member


-8-
      CARRIER MEKBERS' ANSWER TO IABOR MZ1(BER'S DISSENT

      TO AWARD 21011, DOCKET DC-20760. (Referee Eischen)


While the mission of a dissent has been described by us in previous documents, we hasten to point out again that nothing is gained from personal denunciations of referees. If the award, as contended, "endorses fraud" then it should be the purpose of the dissent to spell that out and in doing so, meet the areas of concern set forth by the Referee.
 In the present case, the Majority made the excellent point that the General Chairman was alleged to have made an agreement settling the dispute. There was no disclaimer of such an agreement by the General Chairman, although to do so. It is well recognised that silence and inaction when there is a duty to speak, amounts to assent in contractual matters and is treated as an estoppel, or at the very least, a justifiable inference may be drawn from the silence. Restatement of Contracts §72 and Williston on Contracts §91.
 In any event, the actions of the parties as evidenced by the record presented to the Board, represented a novation or an accord and satisfaction of the original claim which fully extinguished the debt, even assuming the original claim was meritorious. The
 Majority's decision is well founded and we concur.

 W. F. Euker

,~4z

P. C. Carter

 G. L. Naylor

    e 1-~

G. M. Youhn

 Carrier Members' Answer to Labor Member's Dissent to Award 21011.