Protection Agreement of May 1936 at the daily rate of the position to which assigned, or his protected rate, whichever is higher*, or

(iii) To be furloughed with a suspension of protective benefits during the furlough.

In the event an employee fails to make such an election, he shall be considered to have exercised option (3). Employees accepting a job offer that requires a change of residence will be entitled to the benefits provided in Article 1, Sections 9 and 12 of the New York Dock Conditions or such benefits as may exist in the collective agreement or arrangement in effect on the involved carrier provided there is no duplication. Employees who transfer to another seniority district under the provisions of this Agreement will have their seniority dovetailed into the appropriate roster.

*Note: If an employee requests separation pay under the above provisions he shall be paid within thirty (30) days of the termination of employment and such payment will be in addition to any vacation and sick leave allowances due the employee as of the date of his separation. Seventeen (17) months union dues will be deducted from the separation payment.

(c) The following change of residence definition shall apply:

A `change of residence' as referred to herein shall only be considered `required' if the new reporting point of the employee would be more than thirty (30) normal highway miles via the most direct route from the employee's point of employment at the time affected, and the new reporting point is further from the employee's residence than his former point of employment.

(d) In the event it becomes necessary to create a clerical position to assist train dispatchers in the handling of clerical work associated with direct train control, such newly created position will

be subject to and covered by the existing agreement in effect between the individual railroad and BRAC.

Section 3 - Savings Provision

(a) Nothing in this Article is intended to restrict any of the existing rights of a carrier.

(b) This Article shall become effective 15 days after the date of this Agreement except on such carriers as may elect to preserve existing rules or practices and so notify the authorized employee representative on or before such effective date. On those carriers where Direct Train Control agreements are in effect as of the date of this Agreement, such agreements shall remain in effect unless or until changed or modified by the parties thereto."

The Organization also cited Award 69 of Special Board of Adjustment No. 1011 involving TCU and Conrail. It disputed the Carrier's assertion at the claims conference that Award 69 formed a basis for denial of protection under Direct Train Control. The Organization contended "Award 69 addressed a period of time late 1986, in which no territory on the former Conrail System had been Direct Train Controlled." Specifically, the Organization provided copies of 1992 Notices that Conrail would, in fact, implement the provisions of Article IV - Direct Train Control on all Carrier lines effective September 17, 1992.

In its June 26, 2001 response to the Organization's April 19, 2001 letter, the Carrier pointed out that Article IV contained a "savings clause" (above) which provides that "[n]othing in this Article is intended to restrict any of the existing rights of a carrier." The Carrier maintained that this provision recognized the right of the Carrier "to apply pre-existing agreements and/or arrangements rather than implement the direct train control provision provided for therein." It further stated that in the instant claims, "the Carrier exercised this right and chose not to implement the 1986 direct control provision because such action was already permissible under the CSXT North Agreement."

In support of that position, the Carrier pointed to Rule 63 of the former Conrail Agreement, and insisted that there is no prohibition against Train Dispatchers communicating directly with trains. Section (a) of Rule 63 reads as follows:

"(a) No employees other than covered by this Agreement and Train Dispatchers will be permitted to handle train orders except in cases of emergency."

Moreover, the Carrier disputed the Organization's claim that, despite the holdings of Award 69 of Special Board of Adjustment No. 1011, the Carrier had previously implemented the provisions of Article IV - Direct Train Control on its lines. The Carrier first countered that when it acquired Conrail, it did not carry over any Agreements, or commitments, that required it to implement the 1986 Direct Train Control provisions of the National Agreement on certain portions of the former Conrail property.

The Carrier added as well:

"Moreover, and more importantly, the correspondence you rely on in support of your position was dated 1992. Award 69 of PLB 1011 was issued on December 2, 1994 - two years later. The validity of the Carrier's position is plainly apparent from the fact that there have been no locations on the former Conrail property where the direct train control provision of the 1986 Agreement has been implemented since Award 69 was rendered. Consequently, [we] know of no basis on which to afford employees DTC protection in these cases."

In its response, dated October 3, 2001, the Organization disagreed with the Carrier and cited the following three reasons:

"Reason 1 - the CSX North Agreement, a combination of Agreements, did not exist in 1986, it was negotiated in 1999 and applied (with certain restraints) on the former B&O, C&O, and CR properties via the CR Implementing Agreement;

Reason 2 - CSXT chose to implement DTC throughout its operating divisions in 1986, as was its right, thereby modifying existing Train Handling Rules, changes in CBA applications which the Carrier has enjoyed since 1986; and

Reason 3 - the `savings clause' you cite requires CSXT to notify the authorized employee representatives of its choice to preserve existing rules within 15 days after the signing of the 1986 National Agreement (see Article IV, Section 3, as well as Article V & VI all contain the savings clause). Without the prompt notification under the savings clause, DTC was contractually applied as mandated by the 1986 National Agreement."

In addition, the Organization quoted Article V, Sections 2 and 3 of the November 2, 1998 Conrail Implementing Agreement. The parts quoted by the Organization read as follows:

"Section 2 - . . . the substitution of the CSXT-North Agreement for the C&O/B&O agreements will not be construed to permit the removal of work that was covered by the C&O/B&O scope rules ....

Section 3 - . . . it is understood that all work performed by employees at such B&O locations on the date that the CSXT-North CBA is implemented shall become vested with the employees under the scope rule of the CSXT-North CBA and may not subsequently be removed except by agreement with the General Chairman."

Further, the Organization proposed, Rule 65, Section (a) of the B&O Agreement vested the work of handling train orders and other documents associated with the movement of trains to the employees represented by TCU. The Organization maintained that Article V of the parties' Conrail Implementing Agreement recognized the fact that certain work might be performed on the B&O that was not previously performed under the "positions and work" scope rule of the pre-1999 Conrail Agreement.

According to the Organization, Article V of the Conrail Implementing Agreement expressly prohibits the removal of B&O protected work from the employees except by agreement between the parties. Thus, it argued, controlling in this matter are the Conrail Implementing Agreement, the B&O Agreement and the Carrier's choice to implement DTC on its system in 1986.

The Carrier responded to the Organization's letter of October 3, 2001 on October 24, 2001. In that response, the Carrier noted that the Organization admitted that Rule 63 gave the Carrier the right to have Train Dispatchers directly control the movement of trains by voice transmission, train order or other approved means. Thus, the Carrier insisted, the Organization acknowledged that at locations where Rule 63 of the North Agreement is in effect, Article IV of the TCU 1986 Agreement is not applicable.

Moreover, the Carrier pointed out that, if read to its final sentence, Section (a) of Rule 65 of the former B&O Agreement states: "This Rule does not apply to Train Dispatchers performing such duties at/or in the vicinity of the Dispatchers' Office in the normal course of their regular duties." The Carrier also noted that Section (d) of that Rule reads: "Delivering train orders will be confined to employees under this Agreement and train dispatchers." Thus, the Carrier insisted, handling train orders directly with trains under the former B&O Agreement is shared work, not exclusively reserved to employees in the clerical craft.

Finally, the Carrier pointed out that Section 3 of the Conrail Implementing Agreement provides that because the B&O Agreement contained a general Scope Rule, all work performed by employees at B&O locations would be placed under the CSXT North Agreement and become vested with the employees under the Scope Rule of the CSXT North Agreement. In support of its position on this point, the Carrier quoted Article V, Section 3 of the Conrail Implementing Agreement, which reads as follows:

"In the case of the B&O CBA (which contained a `general' scope rule) being replaced by the CSXT-North CBA (which contains a `positions and work' scope rule), it is understood that all work performed by employees at such B&O locations on the date that the CSXT-North CBA is implemented shall become vested with

employees under the scope rule of the CSXT-North CBA and may not subsequently be removed except by agreement with the General Chairman."

The Carrier concluded that under the scope of the CSXT-North Agreement, it does "not have any obligation to implement the direct train control provision of the TCU 1986 National Agreement prior to closing a tower," because under Rule 63 Train Dispatchers may also handle train orders. Further, the Carrier maintained that the "middleman" Tower Operator functions were merely eliminated; an issue that, the Carrier insisted, "was settled by Special Board of Adjustment No. 1011, in Award 69, dated December 2, 1994," in which the Board held that the Carrier "had the right to implement direct train control under the Conrail Schedule Agreement (Rule 63)."

Correspondence continued between the parties well into the following year, with neither party varying from its position. It was ultimately properly docketed for disposition.

The Board reviewed the voluminous record in this case. The essence of the controversy centers on whether the Carrier, now with ownership of portions of former Conrail property (CSXT-North) is bound by the 1986 National Agreement, specifically Article IV - Direct Train Control, with respect to the closing of the towers at issue and consequent job abolishments. The Carrier pointed out, without contradiction, that, "there have been no locations on the former Conrail property where the direct train control provision of the 1986 Agreement has been implemented since Award 69 was rendered."

The Organization's reliance on the "savings clause" of Article IV, which it argues "requires CSXT to notify the authorized employee representatives of its choice to preserve existing rules within 15 days after the signing of the 1986 National Agreement (see Article IV, Section 3, as well as Article V & VI all contain the savings clause) defies the facts of the root source of the current dispute - the Carrier's absorption of the properties now governed by the CSXT-North Agreement. The Organization insists that because the Carrier did not make "the prompt notification under the savings clause," DTC was contractually applied to CSXT-North as mandated by the 1986 National Agreement. Because CSXT had not

absorbed, nor perhaps even contemplated absorption of, the properties now constituting CSXT-North, it could not possibly have given notice on those properties in accordance with the savings clause.

The Board must, therefore look for guidance to the Conrail Implementing Agreement. As noted by the Board in Award 69 of Public Law Board No. 1011:

°1. . . the dispute in this case turns upon the question of whether under existing agreements other than the National Agreement the Carrier's actions contested by the Organization . . . were proper."

Both Rule 63 of the CSXT - North Agreement and Section 3(a) of Rule 65 of the B&O Agreement permit the Carrier to use Train Dispatchers to directly control the movement of trains. Moreover, the Organization has not provided any evidence to counter the Carrier's assertion that the work previously performed at the towers in question has disappeared.

At bottom line, the Board finds that under the Conrail Implementing Agreement and precedent Agreements absorbed therein, the Carrier is not bound by Article IV - Direct Train Control of the National Agreement. Thus, the claims must be denied in their entirety.

AWARD