"Provide that any interpretation designed to deny former Cr:J eriployees who have secured temporary employment with Lehigh Valley equal benefits afforded other affected CIZJ employees,, is inconsistent with the intent of the Order;

"Include a provision in the Report specifically reserv· ing jurisdiction to entertain and dispose of disputes

arising out of the interpretation and application of

'the novel protective conditions the Commission has seen fit to include * * *' .

By Ordor of September 11, 1972 the Commission denied the petitions fox reconsideration a^d clarification.- stating, in substance, that the petitions for reconsideration cat forth no material facts or arguments in addition to those pr viously considered in the proceedin,e; the findings in the report and order of

may 26, 1972 i:·e^e ode^·sa.tely s.qpported by the record; the cc.^.d-_tions which were necessary for approval of the transaction were imposed ruon the CPIJ and the Lehi Valley .Railroad Co..^pta:_; th^re was presented no error o:-fact or law with respec to the matters cernlained of by the petitioners; and no showing had been made wa rantin., reconsiderat,4on.

Bearing in mind that the foregoing discussion by the Commission estnb1isl:ed the indicputable 'act t

viousy -e,is t?ng 3·rotec tive az_-Cements, there can be no merit to contending Carr violated the basic rules agre?r·;:ent involving U4

6b abolishment. Since the °or-^°_r?·

cepted st~undard p~,otective conditions i,·ere superseded, it fe11o;as all agreem,nts if any; rclatirg to abandenmwnt meeting the test of protective con:3itions were

Con=ission alluded to the February 7. 1967 Eon-Ops Job Protection Agrc ment. However, it must be kept in mind that a6reement does not deal with abando: went and is inapplicable in this issue. Best ·.rere it operable in this case, it.

same as other protective aL-.reements discussed in the Commission's Order, would h been pr.-empted.

Lcaminin;; the Refereels Awards point-by-mint emphasizes the startling weakness., if not deli.eratcly inane reasoning, of his position which so blatantl; clashes with 'he cla~^it;,· of Cc^,nission`c Order, and is the reason for ='s dissent to Awar

Page 11: The Referee states:

"The Parties .·ave materially and substantially modified the February ',', 196j Nediation Agreement * * *.~

In fact, of the several agreements cited in the Opinion, only one n(

_ 7 -

Appendix "B", t.a.rch 1, 1967.

(1) Paragraph 11 modified Section 5 of Article l and cancelled Section 3 of Article 1. The first involved limiting force reduction on an annual basis to 61 of rrotected employes. The latter had permitted a rntchinS percentage reduction on a monthby-mon 5a.

(2) ParaZ;Tayh 1 gave protective status to employes hired to !'arch 1, 1966. As a result, but 7h of the 1967 roster employes benefitted.

In .no :,· y .?an these amendment--, which were balanced by advantages to the Carrier, he acc^= ted as material and substantial modifications. .:either tire basic nor the February 7 agreement were materially or substantially changed.

Pa;e 1S Here the Referee appears to indicate accert^nce of the essen tial defense raised by Carrier that the I.C.C. Order is a pre-emption of pre-

' ,

exist:ina con_'.iticas ;_..-. says. ·* ~` * Qwrler s position r...:its .._ricus consis

eraticn." is cons .ration that the iT.R.A.2. .:as "* f * jurisdiction over ra_lroa,

employee disputes arisin; out ef the intcrnretation and application of existing

collective baraaiainq agreements " correct, , absent the aircunctnrocs of

this sue; -:e?-j -e7nticn by the I.C_C

.

Here the Referee has ('On°_ CC^letcly off the tract and followed the route o; a 5(^)(=) Troceeding =z absolute uicrrLard of the analysis of the C^··:

i

mission in deter.·.vn:; ='s case ::as properly heard ::rider i~13). Either t!;rou.;n arrogance or naive*: the Referee writes, in the MUM of Page 14:

"* * * We note, however, that the I.C.C. in Finance Docket i:o. 2657 proceeded on the basis of Sections 1, (18) and (20) and not Section 5(2)(f) of the Interstate Commerce Act.

but draws no evidence to bolster his subsequent determination that "black is white".

Instead, the Referee alludes to earlier A:yards (evidently Third Divisic Nos. 15028Y 15037 and 15460) and holds that they were correct. It is not for us to debate that question. It is not the issue involved in Award No. 20;19. And, it is here that the haferce causes serious questions of his objectivity to be railed; first, there s no explanation of the transformation frcm an obvious 1(V situation to a 5(2)(f), which erists only in the mind of the Referee; second, there is no basis of fact within the Railway Labor Act to support the :unilateral opinion that "-* x- * at the minimum this Tcsrd has concurrent jurisdiction with the Interstate Commerce Commission over disputes of the nature involved herein. Xt * *- ~~

I

- g -

An I.C.C. regulation is not an ordinance of a municipality, or a stat4 or federal statute; it emmanates from a federal statute empowering the Interstat( Comyerce Commission to reGulate certain industries, including the railway indus. try. Therefore, under federal statue, an Interstate Commerce Commission order

or regulation is on the same footing as the federal statute or law.

There can to no more precise authority to focus the Referee on the fac that his jurisdiction has been explicitly and definitely superseded.

From the last paragraph on page 14, we sense the Referee has become c: fused by his own position. he writes:

"This Board has no power to interpret pert:tnent sections of the Interstate Co:~erce Act as to Con;;recsional intent c= to intf~rrolate the authorities whi

in ,,c^,_ort o° the c3fence of pre-emption b the Inter-

state ~;.;:: : rc^ :;c^-in >ion .e .x. ~..n _

It seers he should have stopped there since, as he writes, the doctrine of I.C.C pre-emption is clearly kno':.n.

What are "the basic and :,iaterial differences in collective bargain` agreements involved" u2on which the Referee leans, on pa_e 15, to solicit ne~ :d support for his cpi.nicn of j;irisdiction? 7ne agreement- to whic`: he refer: a:

being involved :gin S.D.:. i;0. 05, Award hoc. 374, 375, X77, are BF~AC and BRS. The scope, bulletin assign:.:ent, seniority rules are in sonr- degree identical and generally comparable.

BRACY °^S and I'.'.-Division are parties to the February ',, 1965 Non-Ops Job Protection ACrccr~-nt and '.-Division is an integral segment of the international Z2AC or

Speaking now to the point-by-point claim decisions:

1. We a(,-ee with the Referee's decision involving claimants named as ineligible because they were ..iter working under the Dispatcher's Agreement or non-protected under the February 7 Agreement, since this is a matter of record.

We agree with his decision that claim Carrier ~~'~ * *' allowed the trans for of work of these positions to non-scope employees on - * * Seniority Distriel 1 at Lake Junction and at Phillipsburg * * *° cannot be sustained.

We dissent in the decision that agreements were violated, for the reasons heretofore expressed.<

2. We dissent. The Referee offers no line of -reasoning to show violation of Article 11.

3. We dicsent to taat portion involving vacation payment because I.' FD 26659 6ictatcd payment of but 3 weeks vacation in the aggregate.

- 9 -

Had the organization been ready to negotiate cettlcment of the issue in line with the I.C.C. Order's provisions, Carrier was ::filling to offer some liberalization. The fieferee chooses to adopt the arbitrary rosition of the organization and rcf,_,s its Order, the Co^.~,ssion removed from consideration the argument upon which the Referee leant so heavily that employer '* * * ·.;ill be retained in service, subject to eorpe

4. The construction of the Referee's aruulent leading to his conclu-

cion, when weiG`ed against the Con-fission's Order, is ri0ic~,lous. To allow this
Award to ctane would be a perversion of c^-^on tense, subztcztiated only by the
th.liCe-l.ri-'O'.2;:;.rl a.., .::.2;:;.rla^ t`:e Refer~e - in calling an abandonment a coordir 'O'a ..,. r_..SO^in~, O° u
ation, and t:Ien vpply ing t',^.c termz of a coordination _1rec::^.n t to an abandonment

F_Frcocio ,-mfus: The errression of one thing is the exclusion of another. The Rcferer·'o ,Jointly ~..a_nta_n. . , .... o7:ira±=d plant. Ac minted cut ? : its. CL:emisssion, C.iJ hi no voice cr cost in t^e operation e: its former lines in Pennsylvania, and dcriv no inccn:e therefrcn.. We diseent.

5. T~.e record shows the -any conferences held after April 1, 1972, a

' 11 - arrce-otable basis. It

request of C-rr.-'.er, to resolve the dispute on a mu',:uw ;,
rt.rst :,a obcer·.·cd t..a±, _-icr to th-~ date of abandonr:ent, . ,nnizati overtua-cs f:. reac!~in- -_ ce-ent. In his opinion., the °cferee gives not one cl,.t
as to t;.e ;·.ational leed,inE: to the 1ecisicn. '.'e dissent.

6. We agree with the decision.

7. - 8. - 9. 1,'e dissent in the decision except the portion alloving the Carrier to deduct outside ear.^.i.^.s, such a·:otmts paid in accordance with FD-<o659, denial of interest, end lir:itation to only one recovery, regardless of the source.

In ordering rayrent of the April 1, 1<)72 ·.:age incrcoe for claimed employes (and tho Referee inqpliec that :iio uulhcrity usurps that of the Fede,al Court overseeing reorganization of the -'J, .ah;ch _edy had ordered deferral of that, and subsequent wage increases, does not possess such authority.

10. We agree with the decision covering this Item.

This Award is palpably erroneous and, in its present form, is a complei n,·ality and ::e vi1-oro_s.ty dissent thereto.
,o _

~c~

cvQ

H. F. Id. Braidwood

P. C. Carter

I'll. B. Jones

G. L. :'ay:Lorr ;~

G. .., Youhn

LAIR DEP·EER' S A~ISWM TO CA.'-',RLRR YEBERS'

DISSENT TO A-;,ARD 20319, L)cc,T CL-20309 (razar)

The carrier members' dissent to Award No. 20319 begs
the very question in issue. They presume each of their
contentions to be established and accepted positions.
They set forth nothing in support of their contentions
but self-serving conclusions embroidered with invective
and sarcasm.
The dissent sets forth as the issue to be decided
by the National Railroad Adjustment Board, a question
which is within the sole province of the courts - as_
correctly noted by the Majority at page 14 of the Opinion.
It characterizes Majority Opinion statements recognizing
the existence of carrier contentions as acknowledgements
of the accuracy of those contentions. It substitutes
exaggeration for argument and confuses its hopes and
desires with reality.

_1/ The dissent relies upon two basic.claims:

1. The I.C.C. superseded the February 7, 1965 Agreement in imposing conditions in the Pennsylvania abandonment cases.

2. The February 7, 1965 Agreement does not apply to abandonments.

1 The dissent also challenges the Majority's conclusion
that the parties had "materially and substantially"
modified the February 7, 1965 Agreement. (Dissent,
pp. 6-7.) In the context of this proceeding the
issue of irhether the modifications are "material
and substantial" is without significance since the
operative effect of the Commission's order and the
Board jurisdiction are unchanged in either event.

I.

JURISDICTION OF NATIONAL RAILROAD ADJUSTMENT BOARD

AND THE INTERSTATE COMMERCE COMMISSION ORDER

A. The Board's Decision on Jurisdiction.

The Majority determined its jurisdiction in this case to be the interpretation of the agreements before it. Such is the first order of business of any arbitration panel - or, indeed, any tribunal - to which a case is presented.

The Majority determined it had jurisdiction to act and that its jurisdiction had not been explicitly superseded by actions of the Interstate Commerce Commission or any other administrative, legislative, or judicial body. Such action by the Majority is emminently proper. The appropriate forum to challenge the action of the Board is in the courts.

B. The Interstate Commerce Commission Order

in the CNJ Abandonment Cases.

The Majority's jurisdictional decision would not have been correct if the Interstate Commerce Commission had held explicitly that it superseded the provisions of the agreements before the Board. The Interstate Commerce Commission, however, held to the contrary further confirming the propriety of the jurisdictional docision of the Majority.

At page one of the dissent there appears a contextually lonesome but fatal admission:

"It has been the specific intention of the

Commission to leave unaffected all contracts

between a carrier and the representatives of its

employees unless it specifically provides

otherwise." (Emphasis supplie .)

i
- 3 - The contracts here involved are "contracts between a carrier and the representatives of its employees". The Commission did not "specifically" supersede them. To the contrary, it clearly indicated and acknowledged their continued applicability. The contracts, therefore, by the dissent's own admission, continue to apply.
1. CNJ's Commitment to Observe its Protective
Agreements and the Commission's Reliance
thereon.
During the course of the hearings culminating in the
I.C.C.'s order of May 26, 1972, authorizing CNJ abandonment
of operations in Pennsylvania, the CNJ informed the Commission
that it would "observe its obligations under the agreements
in the event that abandonments" were authorized by the
Commission.' In its decision authorizing the requested
abandonments, the Commission acknowledged CNJ's commitment
to honor its obligations under the Agreement of February
7, 1965, and made quite clear the Commission's recognition
of the effects of that commitment. At pages 91 and 92 of its
decision the Commission stated:

"A total of more than 809 present CNJ employees represented by several employee organizations have assurance of job protection under a basic stabilization agreement known as the 'February S, [sic] 1965 Agreement'. It was negotiated by five non-operating unions and virtually all railroad carriers in the United States. Under its terms, CNJ and the other carrier parties may abolish positions an transfer work and employees. The carriers thereby are required to maintain a <<·ork once o protected employees on an attrition basis A LONGS UNIJ CONTINUES IN BUSINESS. Thus, lifetime protection of employment an earnings is provided for

- 4 -

those employees who had 2 years of service as of October 1, 1964. The agreement sets forth a formula for determining wage guarantees and provides that forces may be reduced only if the business of the carrier declines by more than S percent, not to exceed 6% per year. Other provisions and subsequent agreements and amendments also affect CNJ's relationship with employees. CNJ asserts it would observe its obligations under the agreements in the event tie aban onments herein are granted." Emphasis supplied.) Again, at pages 124 and 125 of its decision the Commission specifically acknowledged that its determination of the type of employee protective conditions to impose in the abandonment case was influenced by the fact that the 809 employees referred to above would be protected by existing agreements:

"We certainly are not convinced that the effects upon CNJ and L$NE employees would be such that the overall public convenience and necessity requires denial of the applications of CNJ and LV. The record indicates that certain non-operating employees of CNJ i.,-ould be able to make claims for attrition protection under the February 1965 st~ization agreement; that employees 60 years of age or older coui elect retirement benefits; that about half the employees of CNJ and L$NE in Pennsylvania would be hired to operate the lines sought by LV; that our denial of requested abandonment of segments of main line and branch lines in New Jersey would require retention of numerous employees which CNJ had anticipated would be affected; and that employees could claim available unemployment compensation benefits and other temporary rights to aid. The abandonments allowed herein may he the only means of assuring CNJ's ability to continue as an operating railroad. Of itself, that would have the effect of preserving a majority of the jobs of CNJ present employees in New Jersey.

"The extent of the protective conditions we conclude should be impose are influenced by the foregoing considerations.' Emphasis supplied.)

- 5 -

2. Dissent's Attempt to Evade CNJ's Commitment.

The dissent, at pages 4 and 5, sets forth part of the above quotation from pages 124 and 125 of the Commission's decision and argues that the clause "certain non-operating employees of CNJ would be able to make claims . . ." should be read "certain non-operating employees remaining in the active employ of CNJ after the abandonments take place would be able to make claims . . ." The dissent here not only removes language from its context but literally rewrites it to reflect the dissent's desire as to what it wished the Commission had said. Unfortunately from the dissenters' point of view, the Commission said precisely the opposite.
As noted above, the Commission explicitly held that the type of conditions it imposed was "influenced" by a number of listed factors, including the fact that "certain non-operating employees of CNJ would be able to make claims for attrition protection under the February 1965 stablization agreement". Earlier the Commission noted that "more than 809 present CNJ employees" which included those to be affected by the abandonments, had "assurance of job protection" under the February 7, 1965 Agreement. The Commission then accurately described the basic protection afforded by that agreement and noted that CNJ had committed itself to "observe its obligations under the agreements in the event the abandonments are granted."

.

- 6 -

Certainly, no implicit reservation limiting Agreement protection to those not affected can be attributed to the Commission in light of its conclusion that "more than 809 present CNJ employees represented by several employee organizations have assurance of job protection." (Emphasis supplied.)
Indeed, such an unspoken mental reservation on the part of the Interstate Commerce Commission or the CNJ in making its commitment to the I.C.C. would have been manifestly absurd. The basic protection of an attrition agreement - or any protection agreement for that matter - becomes effective only when employees are adversely affected. If the employees are not affected - in this case, if they remain in active service - the basic protection to which they are entitled never takes effect. In short, the employees not affected do not need nor do they receive the benefits of the agreement, including job protection, until they are affected. The dissenters would hold that what the CNJ meant when it committed itself to "observe its obligations under the agreement" was that it would not observe its obligations under the agreement to those of the "more than 809 present employees" who would be affected by the abandonments. If such was the position of CNJ at the hearings, then CNJ misled the Commission, the unions, and its employees.

- 7 -

Such a mental reservation in the Commission's decision would be inoperative even if intended by the Commission since the plain language of its decision contradicts it.

3. The Effect of the Conditions Imposed upon

the Agreements.

The dissent argues that since the I.C.C. denied the attempt of the labor organizations representing CNJ employees in the abandonment cases to extend the February 7, 1965 type protection to all employees, the I.C.C. superseded the February 7, 1965 Agreement where it applied. The clear language of the Commission's decision as well as the tradition and history of I.C.C. imposition of protective conditions reject such a contention.
When the fact that the parties have executed a protection agreement has been specifically raised in a hearing before the Commission, the Commission's imposition of conditions extend only to those employees not covered by such agreement. Seaboard Coast Line R. Co. - Merger - Piedmont Northern Ry. Co., 334 I.C.C. 378, 386 (1969); Illinois Central R. Co. and Illinois Industries, Inc. - Purchase - Mississippi Central R. Co., 334 I.C.C. 282, 286, 289 (1969); Great Northern Pacific and Burlington Lines, Inc. - Merger, Etc. - Great Northern Ry. Co., et al., 331 I. C. C. 228, 278-279 (1967); Pennsylvania R. Co. -
- 8 - Merger - New York Central R. Co., 327 I.C.C. 475, 545 (1966); Kansas City, Kaw Valley Railroad, Inc. Abandonment, 271 I.C.C. 705, 712 (1949).
in the CNJ abandonment cases, the Commission imposed a novel formula of protection based upon a number of considerations including the CNJ commitment that "809 present CNJ employees have assurance of job protection" and "would be able to make claims for attrition protection under the February 7, 1965 stablization agreement." This is basically the same procedure adopted by the Commission in many cases without interfering in any way with existing protection agreements. See, e.g., Kansas City, Kaw Valley R., Inc. Abandonment, 271 I.C.C. at 712 (1949), and Southern Ry. Co. - Control - Central of Georgia Ry. Co., 331 I.C.C. 151 at 169-171 (1967).
Clearly then, the Commission's protective conditions
in the abandonment case were deliberately designed around
the continued effective application of the protective
agreements to the affected employees. The Majority,
therefore, was correct in its jurisdictional determination.
II.

APPLICATION OF THE PROTECTIVE AGREEMENTS

TO ABANDONMENTS

The dissent contains the following unsupported and erroneous conclusion at page 6:

"Commission alluded to the February 7, 1965

Non-Ops Job Protection Agreement. However, it

must be kept in mind that agreement does not deal

- 9 -

with abandonment and is inapplicable in this issue. But were it operable in this case, it, the same as other protective agreements discussed in the Commission's Order, would have been pre-empted." As noted above, the Commission decision itself repeatedly recognized and relied upon applicability of the February 7, 1965 Agreement to the abandonments it authorized. Furthermore, the changes which occurred in the operations of the CNJ as a result of the Pennsylvania abandonments were operational and organizational changes of the first magnitude and, as such, were subject to the plain, literal language of the Agreement. In both its application and interpretation of the protective agreements, the Majority was correct.

C. Fletaher

Labor Member

9-3-74