(Ex. P-13). The Committee agreed; the Union declined (Exs. P-14 and 15). On April 23, 1971, therefore, the Board formally relinquished jurisdiction (Ex. P-16), although in subsequent months it continued its mediatory role nonetheless.
On May 11, 1971, the Union submitted another modification of its job protection demands, and then on May 18 and 19, 1971, the parties met in Washington with the Board and arrived at partial agreement on certain wage increases, the agreement further providing for continuing negotiations until December 1, 1971, during which time the Union agreed not to strike and the plaintiffs agreed they would "not change the working agreements." The agreement also stated that a standing committee would be established "to handle the question of the flexibility of use of Captains and employee protection in connection therewith." The agreement was executed by all the carriers then represented by the Committee, that is, all of the plaintiffs herein, and the Penn Central Transportation Company (Penn Central) (Ex. P-17).
The evidence does not disclose any substantial bargaining progress thereafter. Then, on November 29, 1971, on the eve of expiration of the strike extension provided by the May 28, 1971, agreement, Penn Central withdrew from the multi-employer bargaining unit and revoked its power of attorney from the Committee while at a joint meeting of the parties with a mediator (Robert Cerjan), announcing its intention to bargain thereafter separately with the Union. There is no evidence that the Union by any action, or threat of any action, directed solely or selectively at Penn Central, induced, persuaded or coerced it to withdraw. Indeed, plaintiffs neither then nor now make such a charge, but argue only that Penn Central's move was involuntary in the face of the threatened strike against all the railroads (Baltimore & Ohio Reply Memorandum, pp. 1-2). However, during the separate bargaining after November 29, plaintiffs did not style the withdrawal illegal or violative of any agreement among the carriers, or otherwise complain about it to either the Union or mediator. Only the Union's representative raised the question of legality -- with the mediator. He received no response; however, it is evident that the Board, by reason of the major role played by it in negotiations thereafter, saw nothing untoward in the circumstances.
With the May 28, 1971, extension agreement about to expire, on November 30, 1971 the Union entered into two separate extension agreements, one with Penn Central, the other with the plaintiffs, waiving its right to strike for an additional 15 days. The plaintiffs did not object to the Union dealing separately with Penn Central.
Thereafter, still without protest from the plaintiffs, negotiations continued in Washington, conducted separately as to the Union and Penn Central on the one hand, and the Union and the four plaintiffs herein on the other. Bargaining occurred on December 2, 3, 7, 8, 13 and 14, 1971, under the Board's direction. The four plaintiffs continued to bargain through the Committee, whose chairman, when Penn Central withdrew, had become Erie Lackawanna's Raymond A. Carroll, replacing as chairman a Penn Central employee, Robert Brown. Brown had been chairman since July, 1971, when he replaced J.W. Oram, chairman of the Committee from the beginning of negotiations. One plaintiff (Baltimore & Ohio) now argues there was an element of unfairness in all this, in that
. . . the B & O and other plaintiffs relied upon and put their trust in the chairman of the bargaining unit. There were forty-nine separate sessions, lasting from one day up to nearly a week's time duration, throughout the bargaining. At many of these sessions, B & O's sole representative was the chairman of the unit, and B & O and other plaintiffs did not have an officer at such sessions. (Baltimore & Ohio Reply Memorandum, pp. 7-8)