(American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM:






















OPINION OF BOARD: As a result of certain railroad mergers involving

 the Carrier in this dispute, it was decided that various rearrangements of train dispatching territories would be

 required and that Desk "C", one of the territories involved, would be abolished in the Altoona, Pa. office.


The Carrier notified the Organization in a notice, dated October 22, 1976, of its proposed plan to abolish that office. Subsequent to that notice, the Carrier addressed a second notice, under date of October 26, 1976, to the Organization. It referred to the contents of the letter, dated October 22, 1976, and also stated that it proposed to put the plan into effect commencing December 15, 1976 and suggested a meeting for November 3, 1976 at 11 A.M. at the Pittsburgh Office to discuss the work equities.

 A meeting was held on November 3, 1976, at which time the rearrangements of the Dispatching Desks were discussed. Also discussed was the possibility that Desk "D" may be overworked. A thirty-day trial period was discussed and a re-evaluation was to be made after that time.

 On December 3, 1976, a notice was sent to all Train Dispatchers advising them that on January 3, 1977, the territory handled on the "C" Desk would be transferred to the "D" Desk. No written agreement was entered into pertaining to the manner in which seniority of Train Dispatchers affected by the abolishment of Desk "C" was to be adjusted.

 Under notice, dated January 21, 1977, the Division Superintendent sent a notice to the Claimant January 21, 1977, the remaining territory handled on the "C" Dispatcher Desk will be transferred to that on January 24th, his position on "C" Desk will be abolished. It was suggested that he exercise seniority as provided by the Regulations.

 The Carrier finalized such arrangements on 'or about January 24, 1977 when it abolished Desk "C" and transferred the work of that desk to'th`e ~'D" Dispatching Desk. The Claimant was displaced from Desk "C" and transferred to Desk "D". The General Chairman informed the division Superintendent on January 24,-1977 that by abolishing Traim Dispatching Desk "C" and adding part -of the territory. to., Train Di.spatching-.Desk-"D", that, it was in violation of Regulation.3-G-1 of -the P. R. R. Schedule Agreement. The Claimant, thereafter, filed this claim under_Regulatioa 3-G-1 of the Agreement between the parties upon the ground that the Organization had not agreed to the proposed changes in writing.
                    Award Number 23174 Page 3

                    Docket Number TD-22621


The Carrier opposed the claim and urged that it should be dismissed for want of jurisdiction. It asserted that the provisions of Regulation 3-G-1, under which this claim was filed, had been superseded by the provisions of Section 503 of the Regional Rail Reorganization Act of 1973.

        Section 3-G-1 is material to this case and is quoted;


      "When seniority or dispatching districts or parts thereof are merged or separated, not less than thirty (30) days' advance notice thereof will be given, in writing, by the Manager of Labor Relations to the General Chairman, and the manner in which the seniority of Train Dispatchers affected is to be exercised shall be adjusted by agreement, in writing, between the General Chairman Manager of Labor Relations."


The Carrier is not persuasive in asking for dismissal of the instant case on the jurisdiction basis it is urging. This Board may adjudicate the dispute upon the language contained in the Agreement by interpreting and/or applying the Agreement as written in accordance with the provisions of the Railway Labor Act. We find, therefore, that the Carrier's defense that this Board does not have jurisdiction of the subject matter of this dispute has no merit.

 The Carrier also asserted that, if Regulation 3-G-1 did cover this dispute, that it had complied with that section; that proper notice was given to the Organization of the proposed changes; that it had meetings with the Organization and reached a meeting of the minds; that the General Chairman did not acknowledge, in writing, the notice sent to him, nor did he signify any disagreement with the terms of the understanding; that the Organization's representatives, apparently, did nothing to oppose the proposed changes and said nothing when it was their duty to speak out; instead they ostensibly concurred in the arrangements to be made; that the only inference that could be drawn by the Carrier was that the Organization acquiesced in the action to be taken by the Carrier; that the Organization is, therefore, estopped from contesting the action taken. No evidence was submitted to indicate that the Carrier had suffered any irreparable damage.
                    Award Number 23174 Page 4

                    Docket Number TD-22621


The Organization avers that Regulation 3-C-1 applies when either seniority or dispatching districts are involved and that thirty days' notice must be given when seniority or dispatching districts are involved; that there had been discussions about the abolishment of Desk "C", but that no agreement had ever been reached as required by 3-G-1; that the Organization cannot be estopped from proceeding with this claim, because the first notice that it received that actual steps were to be taken concerning the disposition of the remainder of Desk "C" dispatching territory was in the notice sent to Claimant on January 21, 1977, advising him of the abolishing of Desk "C"; that the Organization i~ediately responded to such notice on January 24, 1977; that its action was timely, therefore, cannot be charged with abstaining from taking action or acquiescing in the Carrier's action. The Organization argued further that in view thereof, the claim should be sustained.

 Upon considering all facets of the present claim, we find that the word "or" in the Agreement is the deciding factor, so that when either the seniority or dispatching districts are involved thirty (30) days written notice must be given.

 The first written notice that the Carrier was finally going to dispose of the remaining territory an Desk "C" was set forth in the above mentioned notice of January 21, 1977. The Organization timely answered the Carrier in its.letter of January 24, 1977.

 There was no meeting of the parties or any agreement in writing reached between them as to the disposition of the remaining territory on Desk "C" as required by Regulation 3-G-1.

 We can only conclude that the Agreement has been violated. (See Award 11068)

 We now turn our attention to that part of the claim which requests compensation.

 The Organization, on Record page 12, points out the basis for the claims entered and explains that no additional compensation is requested for days when the Claimant worked the same trick on the same day of the week after the improper abolishment of his position,
                    Award Number 23124 Page 5

                    Docket Number TD-22621


and the amount payable under this claim when the time and one-half rate was claimed is the difference between the pro rata or straight time rate received and the time and one-half rate now being claimed.

        Section 7-B-1 of the Agreement states;


      "Any adjustment growing out of claims covered by this Regulation (7-B-1) shall not exceed in amount the difference between the amount actually paid the claimant by the Company, and the amount he would have been paid by the Company, if he had been properly dealt with under this Agreement."


It is, therefore, the ruling of the Board that the claim is sustained as provided in 7-B-1 of the Agreement.

 The Organization submitted a notice to this Board, dated March 17, 1979, which it had received from the Carrier. The Carrier objected to the admission of the notice into the Record of the dispute on the ground that it had not been submitted on the property. The argument of the Carrier is most persuasive. We find, therefore, no consideration may be given to the said notice because it had not been submitted on the property.

        FINDINGS; The Third Division of the Adjustment Board, 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 Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.

                    Award Number 23174 Page 6

                    Docket Number TD-22621

                    A W A R D


        Claim sustained in accordance with the above findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
      -L~ ecutive Secretary


Dated at Chicago, Illinois, this 13th day of February 1981.

CARRIER MEMBER'S DISSENT

TO

AWARDS 23174 & 23175, DOCKETS TD-22621 & TD-22622

(REFEREE MANGAN)


On the date the foregoing awards were adopted, the Division adopted dismissal Award 23193 (Sickles) in an identical case which rejected the Organization's posit
    "Because the Carrier has raised the 503 defense on the property, it suggests that the dispute is not properly before this Division because of Section 507 o section asserts that any dispute or controversy with respect to the interpretation, application or enforcement of the provisions of Title V (with certain exceptions not here applicable) may be submitted by either party to an Adjustment Board for final and binding decision t


    "A Special Board of Adjustment has been established pursuant to an agreement between the Carrier and the Organizations (including ATDA), which Board is Special Board of Adjustment 880. Thus, the Third Division lacks jurisdiction over this claim, and it must be dismissed for want of jurisdiction.


    "In response, in the reply to Carrier Ex Parts Submission, the Organization states that this Boa R.R.R. Act. Further, in its Brief to this Board, the Organization repeats various portions of the Ra urges that we have jurisdiction to resolve, and to interpret or apply agreements.


    "While we do not propose to issue an all-inclusive Award dealing with all aspects of jurisdiction, nonetheless we are inclined to agree with Carrier in this particular case. Although, concededly, the Employes have submitted a claim based upon certain agreement language, nonetheless, the October 22, 1976 notification '%y the Carrier was specific in its statement that its action was being taken in accordance with Section 505 of the R.R.R. Act, which appears to grant to Carrier certain assignment, relocation, etc., rights. Thus, it appears obvious that in this dispute, the central issue revolves around the rights which may have been granted

Dissent to Awards 23174 & 23175
 Page 2

    to the Carrier by that Act; and it is an over-simplification to merely state that the claim is based on agreement language.


    "Were we to issue an Award based on certain languor ge of the agreement, that would not dispose of the case, because the record is specifically clear that Section 503 of the Act was raised in a timely manner on the property, and thus, a full exploration of the rights of the parties can only be achieved after a Section 503 adjudication is made. Yet, S3ction 507 precludes us from making such a determination, because it says any dispute or controversy concerning enforcement of the provisions of the Ti exceptions not applicable) may be submitted by either party to an Adjustment Board for final and binding decision.


    "As was noted above, Special Board 880 was created for just that purpose.


"We do not find it necessary to cite the numerous Awards of this Division which have held that we are without jurisdiction to issue awards when exclusive jurisdiction to resolve disputes under certain circumstances has beer granted to other forums. However, we do invite attention to Award 21706 and 20289. accordingly, we will dismiss the claim for lack of jurisdiction." It is apparent these claims should have been dismissed without further consideration on their merits.
 Even assuming arguendo, the Board could have properly considered the disputes on their Merits, t The Majority makes a statement which appears to be the major underpinning for its conclusion that no agreement was reached between the parties in this case. That statement follows:

    "The first written notice that the Carrier was finally going to dispose of the remaining territory on Desk 'IV' was set forth in the above mentioned notice of January 21, 1977 The Organization timely answered the Carrier in its letter of January 24, 1977.

The fallacy of this contention is proven by the record and in particular the Organization's Exhibit TD-6 which was dated December 3, 1976, addressed to all Train Dispatchers and read as follows:
 Dissent to Awards 23174 & 23175 Page 3

        "Train Dispatchers "On or about January 3, 1977, due to the dispatching of the Corning Secondary being reassinged to the Atlantic Region, the following remaining territory handled on the "C" Desk will be transferred to the V" Desk:


        "Harrisburg-Buffalo Main Line - Farwell to Molly "Watsontown Secondary "Elmira Secondary "Williamsport Branch and Secondary "Corning Secondary - CPAD to SR "Avis Branch


    "The Catawissa Branch between Newberry Jet, and Montgomery will be added to "D" Desk.


                        R. E. Werremeyer

cc: W. W. Mix
 P. J. Kelly
 It is noted a copy of this notice along with numerous other notices, was
 sent to the General Chairman, which he ignored. There was an abundance
 of evidence presented to the Board which clearly established that the
 General Chairman was advised as early as October 22, 1976, that Desk "C"
 was to be abolished. The letter of October 22, 1976, included the fol
 lowing paragraph (5):
 "Three 7-day positions of train dispatcher in the Altoona office (Desk C) will be abolished." There eras a meeting on November 3, 1976, which was attended by the various General Chairmen, includ work formerly performed by the incumbents of those positions, was discussed in detail and resolved a in the record. The Joint Submission contained a Joint Statement of Agreed Upon Facts, which insofar as relevant read:
 Dissent to Awards 23174 & 23175
 Page 4

 "On November 3, 1976, the Carrier and the Organiza
 tion met to discuss the equities involved concerning the
 proposed transfer of work. As a result of this meeting,
 the resultant adjustment of forces, as proposed on
 October 22, 1976, was agreed upon by both parties.
 However, only the effective date as previously proposed
 was objected to by the Organization because of the forth
 coming holiday." (Emphasis Supplied)
 There was no argument that the subjects of the discussion
 with the General Chairmen were the work a 't es resulting from the
 contemplated changes. Moreover, the October 22, 1976 letter clearly
 stated in the concluding paragraph that the purpose of the meeting
 was "to discuss the work equities involved". The several letters,
 which Carrier then transmitted, each dealt with the discussions that
 took place on November 3, 1976, some of which dealt specifically with
 the precise issues presented by these claims. In reference to the
 transfer of work from Desk "C" with the resultant abolishment of the
 position, the Carrier called attention to the letter of December 10,
 1976 which read:

        "Mr. W. M. Mix, General Chairman American Train Dispatchers Association Box 353, RFE #3 Hollyidaysburg, PA 16648 "Dear Sir:


        "This will supplement our letter of October 22 !n which we informed you that on or about January 3, 1977, Desk C in the Altoona Train Dispatching Office would be abolished.


        "At our conference in Pittsburgh on November 3, we discussed the reallocation of dispatching territories among the re-aininz desks in the Altoona and reached the following understandings

Dissent to Awards 23174 g 23175
 Page 5

          1) After the revision of territory on Desks B, D and E have been in effect for at least 30 calendar days, the A.T.D.A. may, if it feels that one or more of such desks are overloaded, submit written request to this office that a joint study be made of such allegedly overloaded desks.


          2) A joint study will be made by a representative of the Carrier and a representative of the A.T.D.A. of the desks in question to determine if an overloaded condition exists and what can be done to correct such condition.


          3) If the A.T.D.A. is not satisfied with the results of the joint study, it may then directly invoke the services of the Joint Committee established under the National Agreement of 1937.


    If our understanding are correctly stated would you please sign and return one copy of this letter.

                    Very truly yours,

                    ISI J. R. Walsh

Senior Director-Labor Relations"
 (Emphasis Supplied)
 The General Chairman elected not to respond to this letter. The General
 Chairman's failure to respond was at his peril. In Award 22762 (Scheinman)
 decided February 29, 1980, the Board said:

 "It is obvious, therefore, that the material presented to Carrier by petitioner on October 3, 1978 is properly a part of this case. Carrier's election to ignore it - or at least not to respond thereto - was done at its own perms 1 There is no question the subject of this letter covered the transfer of the dispatching work to Desk "D" as well as Desks "B" and "E" from Desk "C". It is interesting to note, there were no complaints from the incumbents of Desks "B" and "E". We can assume no such complaints
 Dissent to Awards 23174 & 23175
 Page 6

 were registered because the incumbents were satisfied an understanding had been effected or that no Agreement was necessary as Carrier had repeatedly stated on the grounds that Rule 3-G-1 was superseded by the terms of Section 503 and the 1975 Implementing Agreement. See Third Division Awards 3813. (Douglas), 11331 (Coburn), 16448-16449 (Dugan); P.L. Board 214 (Dolnick); P. L. Board 504 - Award 46.
 If the General Chairman had signed this letter, there would be little argument that the issues covered by Awards 23174 & 23175 were fully resolved by agreement. The Carrier stated categorically that the parties "reached the following understandings". (Emphasis Supplied).
 In plain terms, there was an agreement dealing with the issues we had here, but after leaving the conference, the General Chairman refused to sign. It is important to note that he didn't reject the Ietter, nor did he dispute the terms of the unjerstandine. By his inaction, he sou make the changes which the Triple R Act granted.
 The Board has considered this problen on many occasions and their attitude is fairly well summarized in Award 6066 (Wenke (1953), where we said:

    "The next question is, did Carrier have the right to unilaterally transfer the clerical work of expensing waybills from Price to Salt Lake City, the clerical enployes of which are under a different District Seniority Roster?


    See Rule 5 of the parties' effective Agreement. It claims this right under Rule 21, which is as follows:

            'When work of a seniority district and/or

        a number of seniority dist.icts is withdrawn

        and established within another seniority dis

        trict, under a centralized bureau or department,

Dissent to Awards 23174 & 23175
 Page 7

        the rights of the employes directly and indirectly affected will be established by negotiation a


    Ordinarily Carrier may not unilaterally remove work from the confines of one seniority district and put it in another.


    Rule 21 is a rule dealing specifically with the factual situation 5?fnre us and is controlling o and 5 of the parties' Agreement, which are general in character. See Awards 4959, 4988, 5213 and 5220 of 4,_5is Division. By the language us·_d tSe rule does not restrict or limit the Carrier's r:giit to handle the work as it thinks best but expressly recoornizes ':hat it may withdraw work from cno seniority district and transfer it to another. The only condition it places upon Carrier's right to do so is that the rights of the employes directly and indirectly affected will be established by negotiation and agreement of the parties. See Award 4560 of the Third Division. This the Carrier sought to do but the organization refused. Under such circumstances the organization is not in position to complain that an agreement to that e been entered into."


Award 7384 (Rader) follows this decision holding:

    "Carrier supports its position on the theory that it proceeded under the provisions of Rule 21, which reads as follows:

        'When work of a seniority district and/or a number of seniority districts is withdrawn and established witr,in another seniority district, under a centralized bureau or department, the ri indirectly affected will be established by negotiation and agreement.'


    And by the refusal of the Organization to compose the differences between the parties by proceeding under the provision of Rule 21, thereby becoming in conflict of Award 6066 of this Division and citing from that Award the following:


        'Rule 21 is a rule dealing specifically with the factual situation before us and is controlling over Rules 3 and 5 of the parties' Agreement, which are general in character.

Dissent to Awards 23174 & 23175 Page 8

        See Awards 4959, 4988, 5213 and 5220 of this Division. By the language used the rule does not restrict or limit the Carrier's right to handle the work as it thinks best but exoressly recognizes that it my withdraw work from one seniority district and transfer it to another. The only condition it places upon Carrier's right to do so is that the rights of the employes directly and indirectly affected will be established by negotiation and agreement of the parties. * * *'


    The Organization takes the position that there is a distinction between the situation considered the application of Rule 21 as the same applies to the instant case and points out and stresses that part of the Rule "Under a centralized bureau or department" and that the intent and purpose of this rule is clearly stated and it does not apply to a situation being considered here. Hence, that this rule has no application.


    We are of the opinion that when the Organization was served with notice of Carrier's desire to neCotiate under Rule 21, that it was incumb~nt upon the Organization to do so and its failure based on the theory that the Rule is not applicable, was not proper. It would seem that the Organization in this situation took an extremely narrow and technical view of the situation by its failure to negotiate and in view of this situation we feel that Carrier was within its right to proceed as it did. We fai Petitioner's contention that Rule 21 and Award 6066 should not have been considered by the Petitioner prior to its refusal to negotiate and in view of this these claims fail."


See Award 10807 (Moore) which states the matter is now Res Judicata. In

 Award 13174 (Wolf) we again considered a similar problem and concluded:

    "There is no claim that adequate notice was not given. The issue is over the second condition which, if carefully read, has reference merely to the apportionment of employes affected. No restriction is placed by the Rule upon the Carrier's right to consolidate the districts, but -erelv as to how the emolovPs irav be aonortioned between them. This limited right does not prevent Carrier from effectuating the consolidation nor does it rive the 0reanization a veto over it.


    It is inconceivable that, lackin. an Agreement on apportionment, Carrier has no recourse but to

Dissent to Awards 23174 & 23175 Page 9

      Carrier has an obligation to seek Agreement in good faith and if it fails to reach an accord, to proceed under its general managerial prerogatives. The Organization's recourse, in such event, would be to grieve over the question of whether or not Carrier has carried out its obligation to seek Agreement in good faith and has properlv apportioned the employes.


      If we were to hold that the transfer could not be made, absent an Agreement on apportionment, one would wonder .,.,hy the requirement was limited to apportionment. Why did the parties not say that Agreement -must be obtained on all aspects of the consolidation, its extent, the operative dates, the methods of handling seniority, etc. It is obvious that the parties only intended a limited area in which Agreement must be sought, the apportionment of employes. A limited area must not be erpanded beyond its limits. The tail must not be rrc_-mitted to c:ag the doe. If we are not to disregard this requirement as unenforceable our only recourse is to assume that the parties intended this Board to judge which side was unreasonable in its failure to reach an Agreement. Under such a standard we must inevitably hold for the Carrier for the parties were in Agreement on apportionment. They were in disagreement over a matter unrelated to apportionment. ',de cannot hold that the Carrier -,ras unreasonable in refusing to yield to every condition asked by the Organization when it has agreed on all but one and as to that one, the Organization has another recourse, to proceed under Section 6 of the Raii·,;ay Labor Act.


      The Organization held up the Agreement in order to force fro: a the Carrier concessions which the Carrier was under no obligation to grant. In effect, it sought to expand the Agreer~=ent without resorting to the usual method of seeking arendm=nts. Yhile the Carrier may choose to grant such concessions it is under no obligation to do so, and its refusal cnnnot, therefo deemed unreasonable." (Emphasis Supplied)


      In Award 18397 (Criswell) the matter was decided as follows:

Dissent to Awards 23174 & 23175
 Page 10 .. ,

          "Carrier wrote the General Chairman of its intention, then, through representatives of the designated officer, conferred with the Organization. The result of this conference was the General Chairman's response that he would reconsider.


          The General Chairman did not reply, and within five days he was called and written. Again he did not reply and the work was started 10 days after the conference.


          The demand for so quick a decision and the restrictive time limits placed upon the Organization's officer could be questioned with reason.


          But neither does it stand the Organization in good stead to have been afforded the contractual demands of conference and negotiations and to apparent.t.,r forfeit the r by non-reply.


          Technically, the Carrier sought to 'confer and reach an understanding' as the rule demands. The Organization did confer, but did not follow the path to-.,ard r°_ichin.'Z ?n under£~andinq.


          Under the circumstances of this situation we find that the Carrier technically met its requirements; that the Organization failed to pursue the opportunities afforded it." (Emphasis Supplied)


    In Second Division Award 2798 (Smith) that Division said:


          "At issue here is the proper interpretation and application of Rule 2. which reads:


            'Rule 2. There may be one, two, or three shifts employed. :he starting time of any shift shall be arranged by mutual understanding between the local officer

Dissent to Awards 23174 & 23175 Page 11
            'and the erployees' co=Tittee based on the actual service requirements.'


        The differences between the parties arose as a result of the respondent charging the starting time of shifts. Each shift's starting time was in effect advanced one hour. Rep=_raticns are sought for each of the named claimants to the extent of pay for one hour, at the punitive rate.


        In brief, the Organization asserts that the starting ti=e of-the shifts, prior to their change, had been, in effect, negotiated by virtue of which fact they (starting tires) could not now be changed by the unilateral action of the Carrier, but to the contrary, were and are subject to change only in involving the procedures of Section 6 of the Railway Labor Act, as amended.


        On the basis of the record here we conclude that the above quoted rule was not violated. The Organization was consulted, and presented with ample opp proposed change. No such evidence w=-s forthcoming. The rule, as written, contemplates any change in starting tires will be predicated on the requirements of the service. 'r:aile the rule aszures that tie parties will axe:-t t'neit b:st effort to arrive =t a r.-,utual un-er~tr:n:::r_ -he failure to achieve tnis end do=s not c'rr! with it .'.e: c05:er of t^.-° OrF,anl- zation to, in effect, veto any such ch=nr_es.


        We conclude that the charges aide were to meet the exigencies of the service, were not arbitrarily made, or in bad faith and thus not in contravention of Rule 2. See also Award 1320 of this Division." (Emphasis Supplied)


See Second Division Awards 4605 (Williams); 6691 (Bergrten) and 7830 (Van

 Wart).
 Dissent to Awards 23174 & 23175
 Page 12

 The theory of the Board's decision in each of the foregoing cases, where there was a contractual requirement to effect certain changes "by mutual a_r-aement or understanding", is that the Union does not have a right to exercise a veto over the changes contemplated. As long as Carrier makes a good faith attempt to reach agreement, which certainly cannot be denied in this case, then the Board will ont uphold the Petitioner's argument that Carrier is prohibited from making the changes effective without their concurrence. Thus, on the strength of these decisions alone, the claims should have been denied.
 There is an additional argument pressed by Carrier which, based on proper rules of evidence and contract construction, required denial awards in these cases. As noted heretofore, it is Hornbook law that when a person has a duty to speak and remains silent, his silence will be considered an admission nF t:ha fact in issue. Regarding the issue of the General Chairman's duty to speak, the record shows Carrier made every good faith effort to handle all aspects of this case by conference and agreement, to the point of listing all the matters that were to be discussed and after discussion, those matters t:Yzt were resolved to the satisfaction of the Oroanira tion's representatives. The Carrier also put the General Chairman on notice in each letter that he was expected to sign or state his disagreement. General Chairman Mix did neither.
 lbe Board has discussed this problem in a series of awards from various Divisions and the principle is reflected in Award 22700 (Edgett)
 recently decided on January 11, 19.30, where it was held:

            "Vhile it is ;r~nerall

        y <i~·:zntcd that where the-e is a clear and urr:moic'uous rub.: :r agreement, practice cannot be a determi:ur_-_.~ actor: in this case not

Dissent to Awards 23174 & 23175
 Page 13 ...
                              . .. . .


        'only was Carrier not the beneficiary of the separated area method of filling vacancies,

        ,but also the organization obviously sccuiesced in the arranFFe-ent and accented the fruits thereof _n cii-°_nce and.thcu~ oo`?ction. As this Division said in Award No. 1:.27 Ives):


            '* * * Acquiescence is conduct. from which may be inferred assent. Under the doctrine of equitable estoppel a person my (sic) be.preeluded by his silence, when it :gas his duty to stta'k, from asserting a richt which he otherwise would have had. * * * '


        See also Third Division A::ards Nos. 22081, 22148 and 22213."


        In the case covered by Amtrak Arbit:ation Committee ho. 15-11


(UTU v. B.N.) the Arbitration Board (Mr. N.H. Zumas) held:

          · "1lhile it may be argued that Carrier's letter

        of May 24, 1971 was conditional in that it eras Cub

        ject to approv31 of all inter=ested e?pioye repre

        sentativeS and that '.`ere ~~ere cert^in e-nlcvc

        revresentativcs '.:o dia ^ct give their actual

        approval, the 23c~rd is of tae opinion that the

        silence o1 -'^, r=rt of s,:ch re.resentati·:es was

        tant3mo'unt to rc·'^l. _t is universally ac

        cepted that ::here, __ sere, there is no action

        where action is called °o^, tuch ---ction or

        silence cc::ct:tu==s - - erce --:: ::cce~-^nce

        of tt:= teY-s and co - - :here

        is no ba,~_°, therefore, zo`iinu; t.= ·Switch

        tender H. ,l. '-;inter .~_s entitled to a ,'.:ay 13,

        1971 senicrit, date on the 5u-lin~gton Northern

        ::hen ::e ~id not choere to enter the c-ploy of

        Duriin5t^n Northern until lay 2, 19';2.

                                    ,.


        (Emphasis Supplied)

Dissent to Awards 23174 & 29175
 Pa ge 14

 The rule of evidence was stated by the Supreme Court of the United

 States in Baxter et al. v. PPalmigiano, 425 U.S. 308, (1976) when

 they said:

    ~~x * * Indeed, as Mr. Justice Brandeis declared,

    speaking for a unanimous court in the Tod case, supra,

    which involved a deportation, 'Silence is often evidence

    of the most persuasive cha racter.' 263 U.S., at 153

    154. And just last Term in I:ale, supra, the Court recog

    nized that ' _failure to contest an assertion. . . is cones

    sidered evidence of ncouiescence. . . if it would lave

    been natural t-nder the circumstances to object to the

    insertion of the Question.' 42'2 U.S., at 176"

    (Emphasis Supplied)


3The Court based its statement on 3A Wignore, Evidence, Section 1042 (Chadbourn rev. 1970), whic as follows:

 "Silence, omission, or negative statements, as inconsistent:

 (1) Silence, etc., as constituting the impeaching statement. A f,ilrre to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact. This conceded as a ^eneral principle of evidence (Section 1071 infra). i"here ray be explanations indicating that the person had in truth no belief of that tenor; but the conduct is 'prima facie' an inconsistency. There are several common classes of cases: '(1) Omissions in le ·nlnroceedin_s to assert what would naturally nave been asserted under the circumstances. '(2) Omissions to assert anything or to speak with such detail or positiveness, when srrer narrating, on the stand or
          Dissent to Awards 23174 & 23175

          Page 15


          The important-fact is that the General Chairman Mr. Mix, never contested the understanding, a fact reflected by the record. Other parties representing the Claimants, challenged the change many months later, but the understandings were not reached with the Office Chairman nor with Mr. Swartz, Mr. Mix's successor. Whether we consider the matter one of acquiescence by estoppel or one of evidentiary failure on the part of the Claimants, the result is the sane. A failure to answer left Carrier's assertion unchallenged. In Award 18605 (Ricer) the principle was set forth as follows;


                "This Hoard must also give weight to the well established principle that material statements made by one party and accepted or not denied by the other may be accepted as established fact. (Award 9261)"


          Award 16819 (Brown);

          "The applicable Scone Rule is insufficiently

specific to protect the Particular work herein in
 volved, thus Petitioners' cloi:n rust fail absent a
 showing that such work had been by custcm and usage
 · reserved exclusive;; to the complaining craft. This
 was not done. On the contrary, Carrier's repeated
 assertions on the pro-perty that like ;:ork had been
 done by other crafts '.:as never challenged by the
 Organization.
 Footnote continued:
 'elsewhere, the matter now dealt with.'
 '(3) F^11-.'° t0 :. :·'^ 'he St--nd -it 11l,
                      when it ,ad nnve.,b^en niter-_ to do

                      SO. (77nplasiC in the original)

Dissent to Awards 23174 & 23175
 Page 16

      'In view of such assertions remaining uncontradicted, ire will accept such as fact. The claim must therefore be denied."


Award 14385 0;01f):

      "The statement that track indicators were operated by other crafts at other locations, was made on the property to the Organization and is admissible. It has been attacked, however, as c;ere assertion an·3 not prcof. pn assertion ,.hich _is not denied althou;-h there is both ti;:.c and opportunity to d=of it, must be deemed uncontro-

                                        T

              vented and, therefor=, roc-.' of its substanc>_>_. (Emphasis Supplied) There are literally hundreds of A4ards on the four Divisions which have reached the same conclusion.

Thus, it has proven by the record that an agreement was . reached with all the General Chairmen in-;ulved, including a Train Dispatcher's V.P. The Claimant failed =n reject when he had a duty to sp=a;:,and under the circumstances as the Supreme Court h of acquiescence."
 The Majority's reference to Award 11068 (McMillen) is misplaced. That Award dealt solely with Ca to the Organization. The Statement of Claim presented to the Board by the Organization said:

    "(a) The Pennslyvania Pailroad Company, hereinafter referred to as "the Carrier" violated the Schedule A;reement between the parties effective June 1, 1 beginning August 1, 1960, and ending August 31, 1960, no

Dissent to Awards 23174 & 23175
 Page 17

 advance notice was given to the General Chairman by the Carrier concerning the merging of the Zanesville Dispatching District and Dispatching District E in office as contemplated by the aforementioned Regulation. (Emphasis Supplied) The Organization's "Statement of Facts" declared:

 "No advance written notice of such merger of dispatching districts was given to the General Chai the Claimant Organization by Carrier's Manager of Labor Relations pursuant to Regulation 3-G-1, cited and quoted supra ." Moreover, the Organization conceded no agreement was needed in that case

 "because of the fact that all dispatching districts were, and are, within the same SENIORITY district, no such adjustments were required in view of the :act that exercise of rights within the same seniority district are provided for by already existing Agreement Rules." The Board concluded that:

    "Whatever the intent of the parties were, the use of the word "or" in the Agreement is the deciding factor, so that when either the seniority or dispatching districts are involved thirty (30) days written notice must be given."

Thus, the Board never reached the issue involved in our case, which pertained to the General Chairman's failure to make an Agreement or his silent acquiescence in the terms of the Agreement. The only issue involved in Award 11068 was the failure to give notice and Carrier had certainly complied with that requirement in the cases represented by Awards 23174 & 23175.
 Dissent to Awards 23174 & 23175 Page 18

        The Awards are in error and we dissent.


                                  f

                                        0'/


                              W. F. E er


                              P. E. LaCosse


                                .r E. Mason


                                  . U'Connell


                              P. V. Varga

    LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' DISSENT TO


      AWARD 23174 DOCKET TD-22621 AND AWARD 23175 DOCKET TD-22622


The Carrier Members' Dissent to Award 23174 Docket TD-22621 and Award 23175 Docket TD-22622 is without substance or merit and does not detract from these awards which properly adjudicated these disputes by interpreting and/or applying the applicable agreement language and which correctly sustained the claims because there was no agreement in writing to cover the manner in which the seniority of train dispatchers affected was to be exercised when dispatching districts or parts thereof were merged.

The Dissenters initially pointed to Award 23193, which was adopted on the same day as Awards 23174 and 23175, claiming that the instant claims also should have been dismissed without consideration of the merits of the claims. An appropriate dissent has been entered to Award 23193 Docket 22930, wherein it was pointed out that the Board in Award 23193 failed to perform its function and accomplish its purpose to adjudicate the dispute, as contained in Docket TD-22930, by interpreting and/or applying the Agreement language covering the merging of train dispatching districts. It is significant to note that the Referee in Award 23193 is also on the panel of arbitrators for Special Board 880. Perhaps

this had some influence in the decison to dismiss the claim for lack of jurisdiction. It is also significant to note that Award 23193 stated:


      "Weze we to issue an Award based on certain language of the agreement, that would not dispose of the case,. because the record is specifically clear that Section 503 of the Act was raised in a timely manner on the property, and thus, a full exploration of the rights of the parties can only be achieved after a Section 503 adjudication is made".

      (EMPHASIS SUPPLIED)

The Dissenters continue by pointinto what they believe appears to he the major underpinning for the Majority's conclusion that no ot>,roenn·rrt was reached and quote from these awards. Then the Dissenters clairn there was a fallacy in this contention and cite from a letter dated

December 3, 1976 in support of this contention. However, the Majority did consider the December 3, 1976 letter as these awards state:


      "On December 3, 1976, a notice was sent to all Train Dispatchers

advising them that on January 3, 1977, the territory handled on the "C" Desk would be transferred to the "D" Desk. No written agreement was entered into pertaining to the manner in which seniority of Train Dispatchers affected by the abolishment of Desk "C" was to be adjusted". But even more important is the statement in Awards 23174 and 23175 reading:


      "There wa-s no meeting of the parties or any agreement in writing reached

      between them as to the disposition of the remaining territory on Desk "C" as required by Regulation 3-G-1".

The Dissenters try to obfuscate the fact that no agreement in writing was made by showing that the Carrier gave notice implying that all Regulation 3-G-1 requires is to give a notice of the intended changes. The Dissenters even reach the point of contending that silence left the Carrier's assertions unchallenged and, as a result, they become fact, citing awards and court cases in support of this contention. However, assertions, whether challenged or otherwise, are not a proper substitute for the agreement in writing required. Regulation 3-G-1 clearly states that after proper advance notice "...the manner in which the seniority of Train Dispatchers affected is to be exercised shall be adjusted by a reement, in writing...".


      Awards 23174 and 23175 fully considered the arguments again raised


                          (2)

by the Carrier Members in their dissent, and the entire record in Dockets TD-22621 and TD-22622, and correctly ruled that the required written agreement had not been reached.

A review of Awards 23174 and 23175 will clearly establish that the Carrier Members' Dissent to these awards is without substance or

merit and, therefore, the Carrier Members' Dissent does not, in any
 way, detract from the sound reasoning in Awards 23174 and 23175.

                              )9~o


                              J. P. Erickson

                              Labor Member


(3)