Form 1 NATIONAL, RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 41186
Docket No. MS-38476
11-3-NRAB-00003-040445
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Phoebe M. Hudspeth
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"(1) The ineffective, invalid, and defective `Resignation, General
Release and Covenant Not To Sue' agreement.
(2) The misrepresentation of the `Resignation, General Release and
Covenant Not To Sue' agreement.
(3) The document rescinded, totally made whole, and seniority
reinstated."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are
respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
The Petitioner's September 1, 2004 Notice of Intent set forth the official
Statement of Claim before the Board as noted hereinabove. Nevertheless, the Board
notes that the Petitioner's Ex Parte Submission contains the following:
Form 1 Award No. 41186
Page 2 Docket No. MS-38476
11-3-NRAB-00003-040445
"STATEMENT OF CLAIM
1. Whether the contract is knowing and voluntary, deception,
misstatement, misrepresentation, material mistake, fraud, and
omission.
Remedy Sought
Ms. Hudspeth seeks seniority reinstated, other benefits unimpaired and
totally made whole including, but not limited to lost wages and
retirement benefits for damages known and unknown."
The instant matter has an unusual procedural history. According to the
Submissions, the Petitioner was employed by the Carrier in 1978 as a member of the
United Transportation Union (UTU). She transferred to the clerical craft and gained a
clerical seniority date of February 16, 1984. Differences between her and the Carrier
arose thereafter and culminated in her signing two documents. They read as follows:
"RESIGNATION, GENERAL RELEASE AND COVENANT NOT TO
SUE
THIS WILL ACKNOWLEDGE RECEIPT OF VOUCHER NO.
4384660 IN THE GROSS AMOUNT OF FORTY-THREE
THOUSAND SIX HUNDRED FORTY-TWO AND 80!100 ($43,642.80)
COVERING SEPARATION ALLOWANCE.
IN CONSIDERATION OF THE BENEFIT PROVIDED TO ME BY
THIS SEPARATION ALLOWANCE, I HEREBY RESIGN AND
RELINQUISH ALL RIGHTS TO RETURN TO SERVICE IN ANY
CAPACITY WITH THE UNION PACIFIC RAILROAD COMPANY,
MISSOURI PACIFIC RAILROAD COMPANY, WESTERN
PACIFIC RAILROAD COMPANY, THEIR PARENTS, AFFILIATES
OR SUBSIDIARIES (`THE COMPANY'), EFFECTIVE
NOVEMBER 19, 1990. I RELINQUISH ALL SENIORITY RIGHTS
DERIVED UNDER ANY COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE COMPANY AND ANY LABOR
UNION, AS WELL AS ANY RIGHTS AND BENEFITS UNDER ANY
MERGER OR OTHER PROTECTIVE AGREEMENT OR
Form 1 Award No. 41186
Page 3 Docket No. MS-38476
11-3-NRAB-00003-040445
ARRANGEMENT. I RELEASE AND FOREVER DISCHARGE THE
COMPANY FROM ANY AND ALL CLAIMS, CAUSES OF ACTION
AND LIABILITIES OF ANY KIND OR NATURE ARISING OUT OF
MY EMPLOYMENT AT, OR TERMINATION OF MY
EMPLOYMENT FROM, THE COMPANY. I FURTHER AGREE
NOT TO INSTITUTE ANY PROCEEDINGS AGAINST THE
COMPANY, ITS OFFICERS, AGENTS OR EMPLOYEES BASED
ON ANY MATTER RELATED TO MY EMPLOYMENT AT, OR
TERMINATION OF MY EMPLOYMENT FROM, THE COMPANY.
I ACKNOWLEDGE THAT WITH MY RESIGNATION, HEALTH
CARE COVERAGE FOR ME AND MY FAMILY WILL CEASE,
AND THAT I HAVE BEEN INFORMED OF MY RIGHTS AND
OBLIGATIONS UNDER THE `CONTINUATION COVERAGE'
PROVISIONS OF PUBLIC LAW 99-272 SHOULD I DESIRE
EXTENSION OF HEALTH COVERAGE AT GROUP RATES (SEE
ATTACHED DOCUMENTATION FOR EXPLANATION OF
PROVISIONS).
I ACKNOWLEDGE THAT THIS RESIGNATION, RELEASE AND
COVENANT NOT TO SUE HAS BEEN FULLY EXPLAINED TO
ME AND I UNDERSTAND ITS TERMS.
SIGNED AT Omaha, NE, THIS 19 DAY OF November, 1990.
lsl Phoebe M. Hudspeth"
(Additional identifying information omitted)
The document contains one witness signature.
I, Phoebe M. Hudspeth, SSN XXX-XX-XXXX, state clearly nothing
contained within the Resignation, General Release and Covenant Not
To Sue shall be construed to insinuate that I voluntarily relinquish my
Award No. 41186
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11-3-NRAB-00003-040445
`Right To Continue' any and all EEOC claims already begun nor shall
it be construed to mean an abandonment of my right to initiate
litigation as a result of Findings revealed during investigation of such
claims either by me, Government Agency or others. It is understood
this exception to the Resignation, General Release and Covenant Not
To Sue shall not apply to existing claims and grievances progressed
pursuant to the Collective Bargaining Agreement between Union
Pacific Railroad and the Transportation Communications Union.
/s/ Phoebe M. Hudspeth
11-19-90"
The Supplement contains four witness signatures.
At the time of the document signing in November
1990,
Rule 46 of the applicable
Transportation Communications International Union Agreement contained time limits
for the filing and processing of claims. The initial time limit for filing a claim was 60
days from the date of the occurrence on which the claim was based. The record before
the Board does not establish that any claim was filed within that time limit.
The Petitioner's Submission contains two affidavits in support of her contentions
that the Supplement she signed in November
1990
misstated its purpose. Both
affidavits were signed and notarized on August 17,
1995.
Nonetheless, the record does
not establish that any claim was filed within 60 days of the August 17,
1995
date.
Neither the Petitioner's Submission nor that of the Carrier shows that any claim
was filed at any time on or after November
19, 1990
pursuant to Rule 46 of the
applicable TCIU Agreement or any similar successor Rule language. Moreover, the
Submissions do not establish that any claim was ever handled on the property in
accordance with the usual manner specified by the applicable TCIU Agreement.
Just short of 14 years after the November
19, 1990
signing of the separation
documents noted above, the Petitioner filed her September 1, 2004 Notice of Intent to
file an Ex Parte Submission. It was received by the Board on September 3, 2004.
Given the procedural history outlined herein, the Carrier contends that the
matter must be dismissed by the Board for lack of jurisdiction. The facts compel the
Board to agree with the Carrier's position.
Form 1 Award No. 41186
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11-3-NRAB-00003-040445
Section 3, First, (i) of the Railway Labor Act, as amended, requires that claims
and grievances must be handled in accordance with the usual manner on the property
before they may be properly referred to the Board for disposition on their merits. The
record before the Board does not establish that the jurisdictional conditions have been
satisfied. Therefore, the Board must dismiss the matter.
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 21st day of December 2011.