Parties to this dispute waived right of appearance at hearing thereon.

Petitioner seeks holiday pay for the three claimants. Said benefits were allegedly earned in 1968 and the first seven months of 1969 pursuant to the terms of an agreement dated September 2, 1969 (Mediation Agreement between National Railway Labor Conference and the Eastern, Western and Southern Carriers Conference Committees and the Railway Employes' Department, AFL-CIO.

Until July 31, 1969, the claimants were in the employ of the Pullman Company and performed services at the King Street Passenger Station, Seattle, Washington, which was jointly owned by the Great Northern Railway Company and the Northern Pacific Railway Company, pursuant to a Uniform Services Contract between their Employer and the joint owners of the facility. They were covered by a comparable agreement between their Employer and the Petitioner as that between the Petitioner and the Great Northern Railway with reference to terms and conditions of employment for employes in their craft or class.

In February, 1969, the Great Northern Railway gave due notice that it was withdrawing from its Uniform Service Contract with the Pullman Company effective August 1, 1969. In accordance with an agreement with the Petitioner and other shop craft unions, set forth in part herein below, the Great Northern Railway offered employment with it to the claimants at the King Street, Seattle, Washington facility. This was accepted by the claimants, and they entered the Great Northern's direct employ on August 1, 1969.

Several years prior to the above referred to events, application was made to the Interstate Commerce Commission by a number of carriers that they be granted authority to merge their properties and franchises and establish a new company. Great Northern Railway and Northern Pacific Railway were participants in such plan. Negotiations were undertaken between the representatives of the carriers and spokesmen for Unions in the Railway Employes' Department, AFL-CIO, with which the Petitioner Organization herein is affiliated which resulted in an "Agreement for Protection of Shop Craft Employes in event of Great Northern Pacific and Burlington Lines Merger." Said agreement, by its terms was to be effective January 2, 1966, and was to take effect when the proposed merger was consummated. The Petitioner Organization herein was signatory thereto. The merger resulted in the creation of the Burlington Northern, Inc., the Respondent carrier herein, and was consummated on March 3, 1970.

The basic question to be determined is whether the claimants met the requirements set forth in "Article II-Holidays" of the Mediation Agreement, dated September 2, 1969, between certain carries and organizations representing their employes. (Case No. A-8488.) The Pullman Company was not one of the contracting parties to said Mediation Agreement. In its effort to establish the status of the claimants, the Petitioner cites the Merger Agreement effective January 2, 1966 and the January 26, 1966 Agreement, for the protection of Pullman Company employes who would be adversely affected by withdrawal of Uniform Service Contracts by the carriers party thereto. The Merger Agreement defines "present employes" who were to be protected by its terms. As to whether their "present employe" status at the time of consummation of the merger relates back t-> the period prior to

their being placed on the payroll of Great Northern Railway's payroll or whether that status commenced on August 1, 1969 is a fundamental facet of the dispute, and may only be resolved in accordance with the terms of the Merger Agreement. That Agreement specifically and clearly divests this Board of any jurisdiction to determine disputes with respect to interpretation or application of any of its provisions. Section 9 reads in part as follows:

"For purposes of this Agreement, Section 13 of the Washington Job Protection Agreement shall be inapplicable, and the following provision inserted in lieu thereof:

In the event any dispute or controversy arises between the said carriers or the New Company and any labor organization signatory to this Agreement with respect to the interpretation or application of any provision of this Agreement or of the Washington Job Protection Agreement (except as defined in Section 11 thereof) or of any implementing agreement entered into between said carriers or the New Company and individual labor organizations which are parties hereto pertaining to the said transactions, or a dispute over the failure to make, or the terms to be included within, an implementing agreement, which cannot be settled by said carriers or the New Company and the labor organization or organizations involved within thirty (30) days after the dispute arises, such dispute may be referred by either party to an arbitration committee for consideration and determination. Upon notice in writing served by one party on the other of intent by that party to refer the dispute or controversy to an arbitration committee, each party shall, within ten days, select a member of the arbitration committee and the members thus chosen shall endeavor to select a neutral member who shall serve as Chairman . . . . Should the members designated by the parties be unable to agree upon the appointment of the neutral member within ten days, either party may request the National Mediation Board to appoint the neutral member . . . ."

The January 26th, 1966 Agreement provides:

"ARTICLE I.

Section 1. In the event a carrier now participating in Pullman activities as a party to the Uniform Service Contract between certain railroad carriers and the Pullman Company, and who accepts the provisions of this Agreement, withdraws from such Pullman activities or such contract, employes of such carrier and of the Pullman Company deprived of employment or displaced as a result of such withdrawal will be afforded all the protective benefits of the September 25, 1964 Agreement (except separation allowance as provided in Section 7 of said agreement), and it will be the responsibility of the carrier or carriers whose withdrawal has resulted in such adverse effect to assume the burden of affording such protection.

Section 2. Pullman employes who transferred with the work to the withdrawing carrier will have their seniority dovetailed in a manner which will permit affected employes to follow the work

on an equitable basis. Such employes will be afforded all the protective benefits of the September 25, 1964 Agreement (except separation allowance as provided in Section 7 of said agreement). Implementing agreements for said employes shall be negotiated with the withdrawing carrier for this purpose."

"ARTICLE 11.

Section 5. Any disputes will be handled in accordance with Article VI - Resolution of Disputes - of the Mediation Agreement dated September 25, 1964, . . ."

"ARTICLE VI.

RESOLUTION OF DISPUTES

Section 1. Establishment of Shop Craft

Special Board of Adjustment.

In accordance with the provisions of the Railway Labor Act, as amended, a Shop Craft Special Board of Adjustment, hereinafter referred to as `Board', is hereby established for the purpose of adjusting and deciding disputes which may arise under Article I, Employe Protection, and Article II, Subcontracting, of this agreement. The parties agree that such disputes are not subject to Section 3, Second, of the Railway Labor Act, as amended.

(Emphasis ours.)

Section 8. Jurisdiction of Board.

The Board shall have exclusive jurisdiction over disputes between the parties growing out of grievances concerning the interpretation or application of Article 1, Employe Protection, AND Article II, Subcontracting." (Emphasis ours.)

"The agreement of September 2, 1969 in conjunction with the Agreements of January 2, 1966 and the Agreement of January 26, 1966 is controlling."

AWARD