In the Matter of Arbitration
UNION PACIFIC RAILROAD COMPANY ) Pursuant to Article I
 WESTERN PACIFIC RAILROAD COMPANY ) Section 4 of the New
 SACRAXETITO NORTHERN RAILWAY COM?ANY ) York Dock Conditions

UNITED TRANSPORTATION UNION
 SACRMIENTO NORTIrErRN
 U~:ZTED TRANSPORTATION UNION
 WESTERN PACIFIC

 REFEREE WALTER L. PHIPPS

 APPEARANCES

 ICC Finance Docket No . 30 , 000

 For the Union Pacific Railroad Company
 A. C. Hallberg. Director of Labor Relations
 R. R. Gentry, Assistant Director Labor Relations
 Diana R. Woolsey, Labor Relations Officer

 For the United Transportation Union
 Ken Levin, Vice President
 Norman Lucas, General Chairman. Sacramento
 Northern
 C. D. Grimshaw, S. N. Vice ? ocal Chairman
 Harley A. Silex. General Chairman, "festern
 Pacific
 Konte G. Nelson, Vice General Chairman,
 Western Pacific

 OPINION AND AWARD




MCC) rendered its Decision in Finance Docket ho. 30,000

 approving the merger of the Union Facific Railroad (U1°),
 the fissouri Pacific Railroad (MP) and the Western Pacific (WP).
 The ICC in its Decision imposed conditions for the protection
 of employees set forth in Clew York Dock Rv. .- Control--
 Brooklyn Eastern District, 350 ICC 60 (1979). Specifically
 stating:
 "wo find that the protection of New York Dock is appropriate for the protection of applicants' employees affected by this proceeding without modification. ·~ee*e**"
The ICC further summarized:


Accordingly, by letter of V:ay 24, 1983, the Carrier

 served notice upon the General Chairmen. UTU:

 "Pursuant to Section a of the New York Dock Conditions imposed by the Interstate Commerce Commission in Finance Docket Nos. 28614 and 30,000, mentioned above, notice is hereby given . of the intent of Union Pacific Railroad Company, Western Pacific Railroad Company and Sacramento Northern Railway to transfer all Sacramento Northern train service employees, together with all work now performed by said employees, to Western Pacific Railroad Company. It is further intended upon consummation of said transaction that the employees so transferred will thereby ,establish an employment relationship with Western Pacific Railroad Company, and, as such, will be subject to the agreements governing the rates of pay, rules and working conditions of train and yard service employees of Western Pacific Railroad Company, and will be incorporated into Western Pacific Railroad Cwmpany's train and yard service seniority rosters in a manner to be determined."

 Initial conference was held on this notice June 14,
1983, followed by a number of subsequent conferences without
 producing agreement. On September 13, 1984, the Carrier requested that the National Mediation Board appoint a referee pursuant to Section 4(1) of the New York Dock Conditions.
 On October 3, 1984, the national Mediation Board appointed the undersigned Neutral to serve as Referee.
 On November 13, 1984, a joint preliminary meeting was held in Sacramento, California to discuss procedures and options pursuant to New York Dock. At this meeting the parties agreed to exchange submissions on the matter, followed by an exchange of rebuttal submissions arid selected January 10, 1985 as the date for hearings to commence.
 Hearings were held in Sacramento, California January 10 and 11, 1985. Therefore, January 10, 1985 becomes the date of commencement of the hearing for the purpose of computation of the 30-day period within which the decision of the Referee must be rendered. Because of the many questions to be considered, the parties agreed to a 30-day extension or this time limit should it be needed.

 QUESTIONS AT ISSUE
It is noted there are questions pertaining to the jurisdiction of the Referee raised by the parties, which must, of course, be resolved along with those "Questions at Issue" properly before this Referee for decision.
"Will the coordination of the SNR and WT as determined by this Hoard of Arbitration qualify as a transaction within the meaning of that terra as referred to in Article 1, Section 4 of NYD conditions?" The ICC. in its Definitions says a "transaction" means any action taken pursuant to authorizations of this Commission on which these provisions have been imposed. The Sacramento Northern General Committee in its' rebuttal submission on page 1. states: "it is clearly understood and agreed to by all parties that the proposed coordination is a transaction under the provisions of the Few York Dock Conditions." Clearly the answer to the question must be answered in the affirmative. QLESTIOK N0. 2 SELECTION AND REARRANGEMENT OF FORCES Sacramento Northern questions 1 and 2, Western Pacific questions 1, 4 and S, and Carriers questions 1 and 2 pertains to the selection and rearrangement of forces as contemplated under Section 4 of Nyp and is clearly within this Referee's jurisdiction. The.se questions ail deal with the subject of integra tion of the employees seniority; dovetail or top and bottom, and what prior rights, if any, to be es tablished. Quoted below the questions on the matter
 first raised by the Sacramento Northern Committee:

(2) If the Sacramento Northern Conductors
 and Brakemen are not "dovetailed", what
 prior rights will they,have to assign
 ments and/or territories that they currently
 serve including comb=nation runs, if later
 established?

 Mr. Norman J. Lucas, General Chairman, UTU, representing

 the Sacramento Northern Employees, states in his submission

 to the Referee at page 31:

 "Accordingly, for all the reasons set forth in our submission, we respectfully request that the Arbitrator find and accept that the proposals as set forth in either "S11 Employees Exhibit 1120" or "S. N. Employees Exhibit #21" be the required New York Dock implementing agreement for the action described in the Carrier's notice of Pray 24, 1983."
S. N. Exhibit #20, Section 2 reads:

 "On the effective date of this agreement, the Sacramento Northern Train Service employees will transfer to the operation of the Western Pa=ific Railroad Company, and their names shall be "dovetailed" into the respective Western Pacific Consolidated Conductors and Consolidated Brakemans seniority roster in proper place in seniority order. The Sacramento Northern employees transferring to the Western Pacific Railroad Company under the provisions of this agreement will thereby become Western Pao-ific employees."

 S. H. Exhibit #21, Section 2 reads:

 "On the effective date of this agreement, the Sacramento Northern Conductors and Brakemen holdin_ seniority on the Sacramento Northern Railway will be defined as "prior rights S. N. Employees," and their names shall beplaced at the bottom of the Western Pac_.fic Railroad Company consolidated Conductor's and consolidated Brakeman's seniority rosters in the order of their standing on the current S.N. rosters."
 Likewise, at the effective date of this agreement, all Western Pacific Conductors and Brakemen holding seniority on the Western Pacific Conductor and Brakemen seniority rosters will be defined as "prior rights W. P. employees" and their names shall be placed at the bottom of the Sacramento Northern Railway Conductor and Brakemen seniority rosters in the order of their standing on the current W. P. rosters.

 All affected employees shall be identified by an asterisk or other such notation on the respective seniority rosters as "prior rights SN" or "prior rights WP", and shall continue to retain prior rights on their "home road" as identified in this agreement.

 S. N. Exhibit #21, Section 4 readse

 "It is understood and agreed that prior rights Sacramento Northern work shall include any work, either assigned or extra, which has been protected by Sacramento Northern crews and is recognized as Sacramento Northern work. Such work shall include any work on present Sacramento Northern trackage which may subsequently develop thereon."

 "Likewise, it is understood and agreed that prior rights Western Pacific work shall include any work, either assigned or extra, which has been protected by Western Pacific crews and is recognized as Western Pacific work. Such work shall include any work on present Western Pacific trackage which may subsequently develop thereon." S. N. Exhibit #21, Section $ readss

 "In connection with the consolidation of Sacramento Northern train service employees into the Western Pacific Railroad Company, former Sacramento Northern trainmen will have prior rights on the following assignments:



c) Pittsburg Local d) Chico Local

f) Vacaville Local

Nothing in this agreement is intended to restrict the Carrier from establishing new or additional prior rights Sacramento Northern assignments at Pittsburg, Sacramento, Yuba City, Marysville or Chico."

 S. N. Exhibit #21. Section 6 reads:
"On and after the date of implementation of this agreement any vacancy on a prior rights Sacramento Northern assignment shall be protected from the Sacramento extra board. Vacancies on assignments which may be operated at Yuba City, Marysville, Chico# Sacramento, or Pittsburg will be protected from the Sacramento extra board."

 Mr. H. A. Siler, General Chairman, UTU, Western Pacific Railroad Company, presents his answer to the abovequoted questions in his Exhibit Q - pertinent parts quoted belows

 ARTICLE 1 (SENIORITY)
"Seniority rights of conductors, trainmen and switchmen whoss names appear on the system seniority rosters of the Western Pacific Railroad Company, and conductors and trainmen whose names appear on the system seniority rosters of the former Sacramento Northern Railway Company are consolidated on a topsand-bottoms basis, effective on the date of this Agreement, subject to the following conditions:"

 Section 1.
"Those employees identified above whose names appear on the system seniority roster of the Western Pacific and those employees whose names appear on the
 system seniority roster of the former Sacramento Northern Railway Company as of the date of this agreement shall be placed on a consolidated Western Pacific, former Sacramento Northern seniority roster and will be ranked in accordance with their date of hire on their original seniority district or districts."

 Section 2.
"Employees whose names appear on the consolidated system seniority roster of.the Western Pacific Railroad Company and the system seniority roster of the former Sacramento Northern Railroad Company, as of the date of this agreement, shall have protected seniority rights on assignments allocated to their respective districts, and shall have prior rights in exercising such seniority in acquiring and holding assignments allocated to their respective districts, also, in holding positions on extra boards in both road and yard service. including other alternate sources of supply to such seniority districts."

 The Union Pacific Railroad Company (UP) in its

 "EXHIBIT P" likewise states in Section 2t

 "On the effective date of this agreement, the SN train service employees will transfer to the operation of the WPRR and their names shall be placed at the bottom of the WPRR consolidated seniority roster of train and yard service employees. Those employees shall be identified by an asterisk or other such notation on the WPRR consolidated roster as "prior rights S.N.," and shall continue to retain t 9e prior rights to S.N. work as identified in this agreement. The SN employees transferring to the WPRR under the provisions of this agreement will thereby become WP employees.

 The transfer of the SN employees to the WPRR shall not constitute a break in continuity of service or curtailment of vacation or sick benefits, if an applicable." A review of the above exhibits reveals a "consensus"

 that the appropriate basis for the selection and rearrangement of forces pursuant to the notice or transaction which gave rise to this proceeding shall be a consolidation of
 seniority rosters on a "top and bottom" basis with retention of "prior rights" to work customarily performed

 by the respective employees.

 This constitutes the Referee's determination and is
reflected in the attached Implementing Agreement.




4.
 5·
1. Preservation of Health and Welfare.



How shall hourly protection be applied? What method must Carrier use to notify its employees in advance of existence of higher paid job sequences?






to protection under this proceeding?

 Additional questions asked by Western Pacific

 Committee:










12. What is the meaning of "change in residence"?



We are now compelled to consider whether the above-

 listed questions are appropriate for handling under an Article I, Section 4 proceeding, and therefore fall within

 this Neutral's jurisdiction.

 Section 11 of the New York Dock Conditions in pertinent part reads:

The Referee notes that Section 11 is broad in scope and applies to any dispute or controversy with respect to the interpretation or application of any provision of the New York Dock Conditions except Sections 4 and 12. There is markedly differentiation in structure between Sections 4 and 11. Section 4 provides for the appointment of a neutral referee and for a specific expedited time schedule. Section 11 provides for a tripartite committee and sets forth its own time schedule to determine disputes a-rising under that Section. The opinion of the ICC in Finance Docket No. 28250 which initially imposed the New York Dock Conditions referred to Article I Section 4 as, in effect, an individualized provision specifically structured for disputes within its orbit.
 The opinion stated at page 18:

 We note here that Article I, Section 4, embodies a highly structured plan with specified time limits for notice, negotiation arbitration and decision. This is so, to assure that the parties reach the necessary agreement prior to the consummation, but within a reasonable period so as not to delay unduly consummatimof the transaction. The above-listed questions pertAin to the "interpretation, application or enforcement of the various provisions of the New York Dock Conditions. Article 11 provides the machinery to settle such disputes should they arise in the future. The hypothetical questions stated above may or may not become an issue in the application of employee protective conditions under Phew York Dock. The Organization in its Response Submission at page ? etoteso
"The Carrier's position that only certain questions of the 13 are proper issues to be arbitrated under Article I of Section 4 of New York Dock is not well founded. In a recent Award in the matter of arbitration between the UPRR Company and the MPRR Company versus UTU C&T under Article I, Section 4, Referee IJicholas Zumas held in pertinent part which supports our contention that the Board does have such authority." The Organization goes on to cite the Arbitrator's language in support of their position:

 "T parties are 'n agreement that this Arbitrator
 is to issue an award which will provide for a fair
 and equitable method of combining UP and I,4P work
 in the Kansas City Terminal and that the appropriate
 procedure to accomplish this by followin the three
 document concept, **##" (emphasis added
 The above-quoted language clearly reiterates what
 this arbitrator directed to the parties attention at the
 hearing= that any question can be dealt with by the Arbitrator
 when directed to do so by the very language relied upon in
 the Zumas Award which provides "The Parties are in aareement"
 that the Arbitrator should follow a certain appropriate
 procedure and promulgate an Award containing three separate
 documents.
 In this instance however, this Arbitrator has no
 agreement between the parties to stray beyond the strict
 limits of Section 4, so the award relied upon by the organi
 zation cannot be deemed precedential.
 The Referee is, therefore, compelled to the conclusion
 that the above-listed questions raised by the Organizations
 are not properly before this Section 4 proceeding and if the
 need arises must be raised before a committee as provided in
 Section 11.
 The answer therefore, to Question No. 3 is that this
 Referee without specific authority from the parties does not
 have jurisdiction over the matters enumerated therein.
      During the course of the handling of this casef submissions, rebuttal and hearing, a multitude of additional issues, some of which can be characterized as self-serving, have arisen. Including, but not limited to, such things as 30 day notices, guaranteed

extra boards, one tour at outlying points, arbitraries for certain duties, combination service, extension of yard limits, application of crew consist agreement, etc. There are a thers, but suffice it to say such issues are covered by the various collective bargaining agreements . The Carrier is right on point in this regard in their Rebuttal Brief on page 10 stating: "the SN Agreement, if preserved by this Board, should be preserved as is and not in some enriched form." Likewise this should be equally applicable to the other parties.
 Therefore, matters arising under Question No. 4 are not within the jurisdiction of this proceeding and will not be addressed in the Implementing Agreement.

              QUESTION N0. 5 - Authority to abrogate or revise an existing Collective Bargaining Agreement.

The question of authority of the Arbitrator, in this regard, has been raised first in S. N. question 1) and later restated in Carriers submission as Issues NOS- 3 and 4, reading as follows:

      ISSUES NOS. 3 and 4


              (3) Does the Arbitrator in a Section 4, Article I NYDC arbitration have the authority to abrogate or revise an existing collective bargaining agreement?