In the Matter of Arbitration
between

 Norfolk and Western Railway Co. Southern Railway Company

 and

 American Train Dispatchers Assn.

 DECISION AND AWARD

 Appearances

 For the Carriers
 Jeffrey S. Berlin, Esquire
 Richardson, Berlin & Morvillo

 William P. Stallsmith, Jr., Esquire
 Norfolk Southern Corporation

Pursuant to Article I
 Section 4, N.Y. Dock II,
 Conditions - ICC Finance
 Docket No. 29430
 (366 I.C.C. 171)
 New York Dock II, Sec.4 Arb. Comte.mm. N&W/SR and ADTA

 A22o intment
Page 2

 On March 19, 1982, the Interstate Commerce Commission (ICC) approved the application of Norfolk Southern (NS) to obtain control of the separate railroad systems of Norfolk & Western (N&W) and Southern Railroad (Southern) under Finance Docket No 29430 (Sub.-No. 1). Included in the approval order was the requirement that New York Dock II Conditions apply.
 On September 12, 1986, pursuant to New York Dock II Conditions and the ICC order. N&W notified the American Train Dispatchers Association (ATDA) that it intended to transfer the work of supervising the locomotive power-distribution and assignment from the N&W System Operations Center in Roanoke, Virginia, to Southern's Control Center in Atlanta, Georgia. Thereafter, the parties engaged in negotiations on October 7, 27, 28, and November 10 and 11, 1986, and were unable to reach

 agreement upon an implementing agreement. Unable agreement upon a neutral referee, on December 4, requested the National Mediation Board to appoint

 by letter dated December 9, 1986, Robert 0. Harris

 to sit as the neutral. The Carriers named R. S.

 to reach

 1986, N&W a neutral and

 was nominated

 Spenski,

 Assistant Vice President - Labor Relations, as its member of the panel and the Organization designated H. E. Mullinax. Vice President, as its member. On May 13, 1987, the neutral and Carrier members of the panel were informed by R. J. Irvin, President of the American Train Depatchers Association that due
 New York Dock II, Sec.4 Arb. Comte.mm. N&u/SR and ADTA

 Page 3
to the unavailability of Vice President Mullinax on the scheduled date for an executive session of the panel, "I am appointing Mr. W. C. Mahoney to replace Mr. Mullinax as our member of the arbitration board."
 The parties submitted pro-hearing briefs, a hearing vas held on February 26, 1987, in Roanoke, Virginia, and the parties then submitted post-hearing briefs. The panel has met twice in executive session and the matter is now ready for decision.
The NEW was itself formed as the result of several mergers in the 1960's. ATDA had agreements with each of the railroadswhich had merged into N&W. The agreements contained scope language which stated that the Assistant Chief Train Dispatcher would "supervise the handling of trains and the distribution of power and equipment incident thereto; and to perform related work." Accordingly, the Assistant Chief Train Dispatchers issued instructions to mechanical department personnel regarding the number and identity of locomotives to be used on trains originating at their respective terminals. ATDA did not represent Train Dispatchers on the original N&W. Following the merger the N&U "power bureau" assumed responsibility for all of the merger carriers and the ATDA represented dispatchers were no longer assigned the work in question. ATDA appealed this assignment and the Third Division of the National Railroad
 New York Dock II, Sec.4 Arb. Comte.mrn. N&U/SR and ADTA

 Page 4

 Adjustment Board issued an award which sustained the position of ATDA. Thereafter, an agreement was reached between NEW and ATDA that the supervisors who worked out of the power bureau" would be represented by ATDA.
 The Southern, which controls its distribution of power out of Atlanta. utilizes Superintendents of Transportation, who are nonagreement officers. It has done so for at least 22 years with such personnel.
After the merger, Norfolk Southern-determined to consolidate all of the control functions for the entire system in one location. Mr. J.R. Martin, Senior Assistant Vice President, Transportation Planning, of the Southern testified that Atlanta was chosen and that all of the control functions involved in the movement of cars and the assignment of costs when other railroads utilize NS tracks already have been transferred to the control center there. The only remaining consolidation is the one involved in this dispute, the assignment of locomotive power. Mr. Martin indicated that a single control center would effect efficiencies in the utilization of motive power of about one per cent. With 2,200 locomotives, this would mean 22 less locomotives would be needed, a saving of $26 million in capital investment and a saving of $2 million a year in operating expenses. This does not include savings in labor cost which
 New York Dock II, Sec.4 Arb. Coente.mm. Page 5
 N&W/S12 and ADTA

 would be realized. Mr. Martin further testified that because the
 two systems were operated separately the accounting functi.ons
 were carried in the same manner as if they were independent
 companies and locomotives were only transferred between the
 railroads in large batches rather than singly.
 Mr. H. H. Bradley, Assistant Vice President of
 Transportation of the Southern, testified that he was in charge
 of the Control Center in Atlanta. He described the joh of
 Superintendent of Transportation - Locomotive (STL) as follows:

      The STL when he comes on duty would discuss with the off-going STL anything unusual that has occurred during the prior eight hours of an exceptional type nature.


      He would then start pulling up his screens on the CRT looking at inventories of locomotives at the major hump yards where the majority of the engines are located. These are electronic hump yards. They look at the inventory and see if there is anything unusual. The STL would know the schedules of the trains for which he has to provide locomotives.


      We have an operating plan over the system, and in a normal situation the locomotives cyclicly move from one train to another train to another train and then complete the cycle. And he would have to look for exceptions, if he had a mechanical failure. And then he would have to supply another locomotive.


      Then he looks and starts talking with the Chiefs in addition to a tonnage report he has available to see if we have any unusual amount of traffic. He looks to see if there have been any trains annulled that are not to be operated, that have provided extra power, or there may be a problem where there is no power at the end of a normal run, if the train has been canceled.


      Looking at these by division, knowing his inventory and knowing the train schedules, he will actually assign locomotives by number into the CRT in many cases. But that is done generally with discussion, with the Shop Foreman who knows which engines have been serviced,

New York Dock II, Sec.4 Arb. Comte.mm. N&U/SR and ADTA

 which engines are on the fuel rack. He has some of this conversation to make sure that he minimizes his switching. Mr. Bradley further indicated that at the present time the NS system is operated with two regions -- Northern (NEW) and Southern (Southern). When consolidation takes place it will be possible to change this system and there is consideration being given to not only rationalizing the system between North and South -- they are now generally divided but there are some anomalies because of the trackage of the two railroads -- but also to having the system configured into East and West regions instead. He also indicated that he believes that each of the STL jobs should be interchangeable and that an individual should be able to shift from one region to another. Mr. Bradley noted that- the differences between the STLs and the System Operations Center (SOC) Supervisors are in the tools which the STL uses. Because the STL utilizes the CRT, he has the ability to communicate with other members of the railroad, while the SOC board is an informational system that is available only to the people standing in the SOC. The pay of STL's is about ten percent higher than that of SOC Supervisors although it cannot be exactly compared because the benefit packages are different and each STL has his salary set by his manager. It may be different from any other STL's salary.
 New York Dock II, Sec.4 Arb. Comte.Tm. N&W/SR and ADTA

 ?age 7

                  Contentions of the Parties

It is the position of the Organization that it has represented the SOC Supervisors who perform power distribution duties on the NEW under an agreement entered into April 1, 1971, and that the transfer of work involved in this proceeding was not included within the list of jobs which the merged carrier intended to "abolish, create or transfer as a result of ICC approval of its application for joint control" in Finance Docket No. 29430 (Sub.-No. 1). It is the organization's position that the transfer of these jobs is not allowable under the ICC order and that the ICC and this Arbitration Panel have no authority-to change wages, rules, or working conditions of employees which are protected by the Railway Labor Act and Section 11347 of the Interstate Commerce Act (49 USC 11347).
 It is the Organization's second contention that even if its first contention is not agreed to, the ICC "has never claimed for itself the extraordinary statutory power to eliminate Railway Labor Act and collective bargaining agreement rights of entire classes of employees.' It further contends that even if the ICC has such power, it could only be exercised where necessary to effectuate a transaction approved by the ICC and this transaction, the transfer of SOC employees, was never presented to the Commission for approval.
 Finally, the Organization contends that this Arbitration Panel, created under the ICC*'s New York Dock 11 decision,
 New York Dock II, Sec.4 Arb. Comte.mm. NEW/SR and ADTA

 ?age 9

 "explicitly commands preservation of Railway Labor Act and collective bargaining agreement rights. Section 2 of Appendix I states:
 The rates of pay, rules, working conditions, and all collective bargaining and other rights, privileges, and benefits (including continuation of pension rights and benefits) of a railroad's employees under applicable laws and/or existing collective bargaining agreements or otherwise shall be preserved unless changed by future collective bargaining agreements or applicable statutes. The Organization states that even if one were to assume otherwise and also assume that the proposed SOC transfer had been presented to and approved by the ICC, that those assumptions could not be used as a basis for the elimination of collective bargaining and Railway Labor Act rights because the continued existence of those rights does not subject the proposed SOC transfer "to the risk of nonconsummation as a result of the inability of the parties to agree on a new collective bargaining agreement" as required by the ICC decision in the Maine Central decision. The Carriers contend that the Organization's procedural arguments are without merit. They state that the Arbitration Panel has authority under Section 4 of New York Dock II to fashion an implementing agreement. The Carriers further contend that the argument regarding Section 2 is without merit since recent ICC decisions have refuted the Organization's contention and decisions have been issued by various referees under the authority contained in the ICC decisions. The Carriers also contend that the rearrangement of forces which is the subject of
 New York Dock II, Sec.4 Arb. Comte.mm. NEW/SR and ADTA

 Page 9

 this dispute is an appropriate rearrangement under the authority
 granted the Carriers by the ICC decision allowing their joint
 control.
 Finally, the Carriers contend that the Implementing
 Agreement which they proposed is an appropriate basis for this
 rearrangement of forces.

                        Discussion

I As noted by the organization, this is an unusual rearrangement of forces since it combines employees who have chosen to be represented for the purposes of collective bargaining with other employees who are not so represented. However, like all other New York Dock cases. the Panel must first look to its own authority to act. As noted above, this proceeding is the result of a request by the Carriers in accordance with the ICC decision which allowed joint control of the Carriers. In its decision, the ICC (366 ICC 171, 230) stated:

 We find that the applicants' estimates of employee
 impact are reasonable. What dislocations there will be
 appear to be short term. It is possible that further
 displacement may arise as additional coordinations
 occur. However. no wholesale disruption of the
 carriers' work force should occur and the overall
 disruption is clearly not unusual in comparison to
 other rail consolidation transactions.
 It noted further (366 ICC 171, 231):
 We find that the minimum statutory protection of New _
 New York Dock II, Sec.4 Arb. Comte.mm. N&W/SR and ADTA

 Page 10

 York Dock is appropriate for the protection of applicants' employees affected by this proceeding without any of the suggested modifications. The basic questions, then, are whether the type of consolidation desired by the Carriers was authorized by the ICC in its decision and if it was, what are the protections afforded by New York Dock. The Organization has contended that the consolidation of the Roanoke SOC with the Atlanta Control Center was not part of the original submission of the Carriers in whiun they listed the expected consolidations which would be made if the joint control was approved by the ICC. The Organization believes that only the actual consolidations specifically approved by the ICC were authorized; any other consolidation is outside the scope of the ICC decision. The language quoted above seems to belie that contention since it specifically states: "It is possible that further displacement may arise as additional coordinations occur." Had the ICC not believed that there would be additional coordinations, beyond those which had been listed in the submissions to it, it would not have needed to put that sentence into its decision. And having put it in, it must have had a reason -- the general approval of coordinations which would meet the goal of greater efficiencies upon which the rationale of the decision was based. At the hearing; testimony was received which indicates that there will be a substantial saving to the combined carrier through the planned coordination, both in capital costs
 New York Dock II, Sec.4 Arb. Comte.mm. N&W/SR and ADTA

 since costs

 Page 11

 fewer locomotives will be needed and also since operating of the remaining locomotives may be reduced throubh their

 more efficient utilization throughout the entire system. This Panel concludes that the instant coordination was authorized by the ICC and that the question before the Panel is the application of New York Dock standards to that coordination.
 The central issue in this case is the reconciliation of the conflict between Sections 2 and 4 of Appendix I to New York Dock. As noted earlier, Section 2 deals with the right of the employees to continue to enjoy the protection of the Railway Labor Act and any agreements which may have been bargained by the collective bargaining representatives of the affected employees. Section 4, on the other hand, indicates the method by which a carrier may give notice of a change in its operations and the method of resolving disputes which may arise thereafter. This proceeding results from the application of Section 4, and its authority derives from that section.
 Prior to 1981, the question of whether a carrier could, through a consolidation of forces, effect changes in rates of pay, rules, or working conditions had never been raised before an arbitrator in a Section 4 proceeding. Between 1981 and 1983 at least five arbitrators ruled that the ICC did not desire that changes of rates of pay, rules, or working conditions, or of representation under the Railway Labor Act occur through
 New York Dock II, Sec.4 Arb. Comte.mm. N&W/SR and ADTA

 Page 12

      arbitration under Section 4 of the New York Dock conditions. 1/ On August 23, 1985, the ICC in the Maine Central Railroad Co. case (Finance Docket No. 30532) issued a decision in which it discussed the interrelationship of the ICC orders in consolidation cases and the Railway Labor Act. In that decision,


      the ICC stated:


In Southern Control, the Commission observed that section 6 of RLA "would seriously impede mergers," it were not for the protections of WJPA that were

 essentially incorporated in the Commission's decision. 331 I.C.C. at 171. RLA thus had no independent effect. Southern Control was the Commission's response to a Supreme Court directive in Railway Labor Executives' Association v. U.S., 379 U.S. 199 (1964), that the Commission clarify the scope of protective conditions imposed in a certain merger. It may be noted that the Court's concern was not with the provisions of RLA or WJPA (except as reflected in the Commission's order), but with the level of employee protection decreed by the Commission in its order. It is that order, not RLA or WJPA, that is to govern employee-management relations in connection with the approved transaction.

 Such a result is essential if transactions approved by us are not to be subjected to the risk of nonconsummation as a result of the inability of the parties to agree on new collective bargaining agreements effecting changes in working conditions necessary to implement those transactions. All of our labor protective conditions provide for zompulsory binding arbitration to arrive at implementing agreements if the parties are unable to do so, so that approved transactions can ultimately be consummated. Under RLA, however, changes in working conditions are generally classified as major disputes with the results that there is no requirement of binding arbitration.

 if

 1/ N&W. Illinois Terminal RR. Co. and Railroad Yardmasters of America and UTU (Sickles, 12/10/81); NEW. I11. Term. RR. Co. and BLE and UTU (Zumas, 2/1/82); NbW. I11. Term. RR. Co. and UTU (Edwards, 2/11/82); B&0. Newburgh & So. Sh. Rte. Co. and BMWE, USW (Seidenberg, 8/31/83); BbO. Newb. 6 5. Sh. Ry. Co. and UTU. BLE (Fredenberger, 9/15/83).
 New York Dock II, Sec.4 Arb. Comte.mm.
 NEW/SR and ADTA

 See REA Express. Inc. v. B.R.ALC., 459 F.2d 226, 230 (5th Cir. 1972). Since there is no mechanism for insuring that the parties will arrive at agreement, there can be no assurance that the approved transaction will ever be effected. Such a result we believe is unacceptable and inconsistent with section 11341 of our act and with Section 7 of the RLA which provides that arbitration awards thereunder may not diminish or extinguish any of our powers under the Interstate Commerce Act. */

 */ For the same reason we reject the argument that the
 provision of our conditions requiring that working
 conditions not be changed except pursuant to
 renegotiated collective bargaining agreements
 reinvigorates the RLA and causes its provisions to
 supercede the mechanism for resolving disputes
 associated with negotiating implementing agreements
 contained in the labor protective conditions we impose
 on approved transactions.
 Prior to, at the time of, and subsequent to this ICC
 decision, various arbitrators ruled that Section 4 effectively
 superceded the Section 2 protection contained in New York Dock
 and that new conditions could be imposed pursuant to such a

 Section 4 arbitration award. 2/

 least two cases arbitrators who had made earlier decisions regarding the interrelationship between sections 2 and 4 have

 Page 13

 It should be noted that in at

 changed their position.

      In the Union Pacific et al. and UTU case, Arbitrator Brown


opens his discussion~of the case with the following:

      The jurisdiction of this arbitral committee is derived from the Interstate Commerce Commission, which derives


      2/ N&W. et al, and UTU (Ables, 9/25/85); Union Pacific

R.R. et al, and UTU (Brown, 1/85); C&0. Seaboard System RR, and
    Brotherhood of Railway Carmen (Marx, 12/15/84); Union Pacific et and American Train Dispatchers Association (Fredenberger,

    5/27/84); BLE and Union Pacific et al. (Seidenberg, 1/17/85)

New York Dock II, Sec.4 Arb. Comte.mm. NEW/SR and ADTA

 Page 14

    its authority from Congress as set forth in Revised Interstate Commerce Act, 49 U.S.C.A. Secs. 11341(a) and 11347. This committee is a creature of ICC and is chartered to exercise a measure of the authority of ICC in order that final and effective resolution may be had in relation to multi-party disputes which will assuredly rise when employees compete for job assignments and union committees contest for troops and territory.

The authority of this panel is circumscribed not by the Railway Labor Act, but by the mandate of the Interstate Commerce Commission, and, subject to the will of the ICC, we are commissioned to exercise its full authority to achieve a fair and equitable resolution of the dispute before us. The ICUs authority in cases such as that before us is plenary and exclusive. The panel hearing the instant dispute has exactly the same authority as that noted by Arbitrator Brown, quoted above. Whatever may have been the view prior to the ICC decision in the Maine Central case, it is clear that the ICC believes that its order supercedes the Railway Labor Act protection. While it did not state specifically that the inconsistencies between Sections 2 and 4 of New York Dock conditions are to be resolved in favor of Section 4, that conclusion is inescapable. Furthermore, as a creature of the ICC, this panel is bound to the ICC view. If that view is incorrect, it is to the courts, not this panel, that the Organization must turn for relief from this newly evolved reconciliation of the conflict between the two sections. The Organization has raised another point which is worthy of discussion. It states that the ICC cannot take away the collective bargaining rights of the employees involved in the coordination and that the effect of this' coordination is exactly
 New York Dock II, Sec.4 Arb. Comte.mm. N&W/SR and ADTA

 Page

 to do that. This argument bears analysis. It is clear that if
 the employees who are moved to Atlanta are consolidated with the
 present Atlanta employees, the present collective bargaining
 agreement between N&W and ATDA may not be carried along; however,
 this does not change the rights of individual employees. Nor
 does it eliminate a class of employees, since that class was
 never recognized through an election under the auspices of the
 National Mediation Board. If, as the ATDA claims, the
 Superintendents of Transportation are employees or subordinate
 officials within the meaning of the Railway Labor Act, they, as
 individuals, will have the right to petition the National
 Mediation Board for the selection of a representative for the
 purposes of collective bargaining. What is lost by the transfer
 is the incumbency status of the ATDA, a status arrived at through
 recognition, not through election. The protections afforded by
 New York Dock are to individual employees, not to their
 collective bargaining representatives. Whatever rights the ATDA
 may have under the Railway Labor Act as an "incumbent" bargaining
 representative are for determination by the National Mediation
 Board, not this panel. The NMB has exclusive jurisdiction over
 representation matters. See the Order by Justice O'Connor (A
 716) of April 2, 1987 in Western Airlines. Inc. and Delta Air
 Lines. Inc, v. International Brotherhood of Teamsters and Air
 Transport EmRloyees, U:S. (1987). Motion to vacate the stay
 orders was denied by the full Supreme Court on April 6, 1987.
 New York Dock II, Sec.4 Arb. Comte.mm. N&W/SR and ADTA

 Page 16

 The Carriers offered a proposed implementing agreement on October 7, 1986. They offered a second proposed implementing agreement on November 11, 1986, and have submitted the latter as the agreement to be found appropriate by this panel.
 The original Carrier agreement indicated that the new positions created in the SR Control Center would be offered first to N&W employees currently holding SOC positions in Roanoke. Those positions not filled would then be offered to other qualified N&W employees holding SOC seniority. It further indicated that N&W employees accepting positions would be relocated at the expense of the Carriers. Finally, it indicated that an employee who declines an offer of employment in the SR Control Center may exercise his seniority under applicable rules and agreements.
 The second Carrier agreement proposes "NW employees currently holding SOC positions in Roanoke and other NW employees holding SOC seniority will, upon request, be given consideration for employment in the SR Control Center in Atlanta." It will also encompass all protections afforded by New York Dock conditions.

 The basic difference in the two agreements is that the first agreement gives the first right to the new positions in Atlanta to SOC employees and the second only allows them to request consideration for employment. in that city.
 New York Dock II, Sec.4 Arb. Comte.mm. ;IOW/SR and ADTA

 The Organization offered a proposed implementing agreement which would have continued the Organization as the representative of the transferred employees and any employees subsequently hired or promoted to the SR Control Center. It also contained provisions regarding the movement of household goods and the sale of homes of transfered employees
 This panel may not change the terms of the New York Dock Conditions. Only the parties may by mutual agreement modify such conditions. Since the first Carrier proposal, that of October 7, 1986, and the Organization proposal both go beyond the terms of an implementing agreement set forth in New York Dock, the second proposed Implementing Agreement of the Carriers, that of November 11, 1986, will be placed in effect.

                          Award

The parties shall adhere to the Implementing Agreement as proposed by the Carriers on November 11, 1986, subject only to the following:
 Within a period of 14 days following the date of this Award, the parties shall meet to determine if there are any mutually agreeable revisions of the November 11, 1986, proposal. If no agreement is reached on any such changes during the above specified 14-day period, the Implementing Agreement shall be as
 New York Dock II, Sec.4 Arb. Comte.mm. N&W/SR and ADTA

 proposed by the Carriers on November 11, 1986.

 --Le_4 ~__ /"*'

 Robert 0. Harris
 Chairman and Neutral mber

 -r-

 R S Spenski
 Carrier Member
 (Concur

 Page 18

      L


      ~ J

W. G ~oney
 Organization Member
 ( Ce~s~r~ / Dissent)
            ATTAC~DMNT "A"

(revised November 20, 1966)

      IMPLEMENTING AGREEMENT


            BETWEEN


NORFOLK AND WESTERN RAILWAY COMPA14Y

SOUTHERN RAILWAY COMPANY


AND NORFOLK A14D WESTERN EMPLOYEES

 REPRESENTED BY

 THE AMERICAN TRAIN DISPATCHERS ASSOCIATION

 WHEREAS, Norfolk and Western Railway Company and Southern Railway Company have filed applications with the Intqrstate Commerce Commission ("ICC") in Finance Docket No. 29430 and related sub-dockets 1 through 6 ("FD 29430") seeking approval of the acquisition by Norfolk Southern Corporation ("NSC") (formerly Nw'S Enterprises, Inc.) of control of Norfolk and Western Railway Company and its carrier subsidiaries ('Nw") and of Southern Railway Company and its carrier subsidiaries ("SR") and coordinaton of operations of NW and SR; and
 WHEREAS, the ICC has approved the aforesaid Finance Docket and has imposed the employee protective conditions set forth in New York Dock Ry. - Control - Brooklyn Eastern District Terminal, 354 ICC 399 (1978), as modified at 360 ICC 60 (1970) ("New York Dock Conditions"), therein; and

    WHEREAS, the Carriers have served notice on September 15, 1986 of

their intention to coordinate certain Nw work per foc^.ed by iNW employees in the System Operations Control (SOC) in Roanoke, Virginia into the SR Control Center in Atlanta, Georgia on or about December 15, 1986; and
 WHEREAS, the parties signatory hereto desire to reach an implementing agreement consistent with Article I, Section 4 of the New York Dock Conditions with respect to the transaction described in this agreement:

 NOW, THEREFORE, IT IS AGREED, among NW, SR, ("Carriers"

 American Train Dispatchers Association ("ATDA"), as follows

 and the

 ARTICLE I
 Section 1
 Effective fifteen (15) days after notice is given to Nv.' employees in SOC, located in Roanoke, Virginia, with a copy to the General Chairman, the work performed by N:: employees in SOC shall be coordinated into the SR Control Center in Atlanta, Georgia, as described in Attachment 1 to this Agreement. Section 2
 The notice provided for under Section 1 hereof will list the names, seniority dates and cafes of pay of the regular occupants of the positions in SOC, Roaneke, to be abolished, and the Fcsitions to be established in the SR Control Center in Atlanta.
 Section 3
 Nothing in this agreement prevents the positions to be establis~-ein the SR Control Center in Atlanta from being established on the same terms and conditions as apply to other comparable positions in existence in the SR Control Center prior to the effective date of this Agreement. Section 4
 NW employees currently holding SOC positions in Roanoke and other NW employees holding SOC seniority will, upon request, be given consideration for employment in the SR Control Center in Atlanta.

 ARTICLE II
 Section 1
 Any employee adversely affected by this transaction will be afforded the protective benefits prescribed by the New York Dock Conditions. Section
 An employee eligible for benefits under the New York Dock Conditions as a result of this transaction must file a claim therefor in writing with the officer(s) designated Uy the Carrier(s) within sixty (60) days following the end of the month for which a claim is filed on the claim form provided by the Carrier(s). Section 3
    Protective benefits shall cease prior to the expiration of the

employee's protective period in the event of the employee's resignation, death, retirement, termination for justifiable cause, or failure to return to service upon recall.

 ARTICLE III
 This agreement shall become effective as of the date executed and constitutes the Implementing Agreement fulfilling the requirements of Article I, Section 4, stipulated in the New York Dock Conditions. Where rules, other agreements and practices conflict with this agreement, the provisions of this agreeent shall apply.

 Signed at Roanoke, Virginia this 11th day of November, 1986.

 FOR THE AMERICAN TRAIN DISPATCHERS ASSOCIATION:

 General Chairman

 Approved:

 Vice President

 3/T-00871/rss

 FOR NORFOLK AND WESTERN RAILWAY COMPANY

 Assistant Vice President
 Labor Relations

 FOR SOUTHERN RAILWAY COMPANY

Assistant Vice President

Labor Relations

DISSENT OF ORGANIZATION MEMBER

 I must dissent from the Decision and Award (Decision) dated May 19, 1987, which was drafted by the Chairman and Neutral Member and concurred in by the Carriers' Member.
 The Decision sanctions the unilateral transfer of work from Norfolk and Western Railroad SOC Supervisors and Assistant Chief Dispatchers to non-agreement personnel on the Southern Railway. The subject work is exclusively reserved to N&W employees under numerous longstanding agreements between the American Train Dispatchers Association ("ATDA" or "Organization") and the railroads which now constitute the N&W system through merger. N&W employees' exclusive right to this work was confirmed by the National Railroad Adjustment Board, Third Division in Award No. 16556 (ATDA Exhibit No. 1). The transfer of the work creates a major dispute under the Railway Labor Act.
 The Decision mischaracterizes the position of the ATDA; it is replete with factual and legal errors; it renders conclusions without attempting to justify them; and, it reaches contradictory conclusions regarding the jurisdiction of the National Mediation Board, for it usurps that jurisdiction by stripping from the SOC Supervisors their representation rights while holding that the National Mediation Board "has exclusive jurisdiction over representation rights" of the ATDA.
 Indeed, if this be a valid award, all future arbitrations under Section 4 of the New York Dock conditions have been rendered futile for it has laid a foundation upon which the railroads can erect corporate edifices unburdened by rules of law or statutory or contractual provisions; all will be superseded by the "automatic exemption" provisions of Section 11341(a) of the Interstate Commerce Act.
 On the issue of the employees' representation rights, the Decision is a gaggle of contradictions and unsupported conclusions. At page 9 the Decision identifies the SOC Supervisors as "employees who have chosen to be represented for the purpose of collective.bargaining". At pages 14 and 15, it reaches a contrary conclusion in holding that the employees' loss of their representation rights and their collective bargaining agreement is no loss at all because their right to representation "was never recognized through an election under the auspices of the National Mediation Board." The distinction between "election" and "recognition" in the latter statement is itself contradictory of the historical rulings of the National Mediation Board, including those contained in its very recent decision in TWA/Ozark Airlines, 14 N.M.B. 215 (April 10, 1987).
 The Decision first concludes at page 15 that the "present collective bargaining agreement [sic] between N&W and ATDA may not be carried along [when the work is transferred to Southern]"
 but gives no reason for that conclusion 1/; and, then proceeds to the incredible conclusion, again unsupported, that the employees' loss of their agreements and their statutory representation "does not change the rights of the individual employees." The Decision finally concludes its discussion of the rights of the N&W employees by saying that those employees can, in effect, retrieve the rights they did not lose by petitioning the National Mediation Board for an election after they get to Southern, provided they can demonstrate the Southern work is that of "employees or subordinate officials within the meaning of the Railway Labor Act." (Decision, p. 15.)
 The same paragraph concludes that the only loss occasioned by the transfer "is the incumbency status of the ATDA" (Decision, p. 15) and since that is not protected by New York Dock it need not be addressed. But if ATDA has any rights as an "incumbent baragaining representative" they "are for determination by the National Mediation Board, not this panel." The Decision, having stripped the N&W employees of their representation and Railway Labor Act rights, then reaches its final, incongruous conclusion that with regard to the organization "the NMB has exclusive jurisdiction over representation matters."
_1 Perhaps no supporting reason is offered because this
    conclusion would seem clearly contrary to established law.

    BN, Inc. v. ARSA, (7th Cir. 1974) 503 F.2d 58, G3.

The Decision errs in its confusion of the several contentions of the Organization and its failure to mention

 others.

 At page

 the Decision inaccurately characterizes the

 organization's position as follows:

 "It further contends that even if the ICC has such power [to eliminate Railway Labor Act and collective bargaining agreement rights of entire classes of employees], it could only be exercised when necessary to effectuate a transaction approved by the ICC and this transaction, the transfer of SOC employees, was never presented to the Commission for approval."

 The position

 of the Organization was, and remains:

      1. The ICC has no authority, and therefore a New York Dock arbitrator has no authority to extinguish the Railway Labor Act and collective bargaining agreement rights of employees. (ATDA Subm., pp. 12-14, 19-21; ATDA Brief, pp. 1, 7, 9-13.)


      2. Even if the ICC might have such rights, it has never claimed the statutory authority to eliminate the Railway Labor Act and collective bargaining rights of entire classes of employees; in this case the entire class of SOC Supervisors on the N&W. (ATDA Subm., pp. 17-19, 21; ATDA Post-Hearing Brief, pp. 1-2, 4.)


      3. If such authority existed it could be exercised only if necessary to carry out the transaction approved. (ATDA Subm., p. 19-20; ATDA Brief, p. 2, 5-6, 6 n3, 7, 14, 17. )


      4. The "approved transaction" was fully consummated or "carried out" when NS achieved control of N&W and Southern in 1982, therefore, no exemption authority could now be triggered or activated. (ATDA Subm., p. 18, 20.)

5.

 If the "approved transaction" was not simply approval of NS control of NEW and Southern but extended to particular changes in operations, services or facilities, the change involving the SOC Supervisors could not have been "approved" because it was never presented to the Commission and, in any event, the Interstate Commerce Act does not provide the I.C.C. with jurisdiction to approve such changes. (ATDA Subm., pp. 14-17, 19; ATDA Brief, pp. 2, 4-5.)

          6. The Arbitration Panel and the parties are governed by the orders issued in the NS Control case which explicitly preserve the Railway Labor Act and collective bargaining rights of the employees in Section 2 of Newt York Dock and contain no contrary provisions or later orders from which the Organization could have appealed. (ATDA Brief, pp. 2,4,8. )


          7. Assuming such authority to exist in the I.C.C. and the arbitrator, such superseding authority could not be exercised unless "necessary" to "carry out the transaction" and the implementing agreement submitted by ATDA demonstrated it was not "necessary" to strip SOC Supervisors of their rights in order to accomplish the transfer desired by NS. (ATDA Subm., pp. 19-20, 21-28; ATDA Brief, pp. 2, 3 nl, 5-6, 6 n3, 7, 14, 14 n7; Transcript of Hearing, pp. 191, 192, 203-204.)


This last argument of ATDA was rejected by the simple device

 of ignoring it.

 Regarding the elimination of employee rights in the face of Section 2 of New York Dock which specifically preserves such rights and in the absence of any language in the orders governing the NS control case to indicate otherwise, the
 Decision concludes at page 11 that the "central issue in this
 case is the reconciliation of the conflict between Sections 2
 and 4 of Appendix [sic] I to New York Dock." It then finds,
 after quoting extensively from the Commission's 1985 Maine
 Central decision and an arbitration decision reached thereafter,
 that Section 2 is now wholly meaningless. (See, Decision, p.
 14.)
 The Decision quotes from a 1985 decision of an Arbitrator
 Brown in which he states that arbitrators under New York Dock
 "are commissioned to exercise . . .[the] full authority [of the
 ICC] to achieve a fair and equitable solution of the dispute
 before us"2/, but then reaches a result which is clearly unfair
 and inequitable. The Decision justifies this result by engaging
 in hypertechnical reasoning which defies even a cursory
 scrutiny. For example, the Decision determines that the
 employees have lost no rights because their representation on
 N&W resulted from "recognition, not election" and their "present
 collective bargaining agreement [sic] [which] . . . may not be
 carried along," involve rights of the Organization and not the
 individual employees. Another example is the Decision's
 conclusion that ATDA's proposed implementing agreement and the
 first of the two proposals submitted by NS have gone "beyond the
 terms of the New York Dock Conditions" presumably because they
 would give "the first right to the new positions in Atlanta to

 Emphasis supplied. See also ATDA Brief, pp. 15-19 for analysis of authorities on "fair and equitable" requirements.
 SOC employees". 3/ Therefore, the Decision would impose the Carriers' second proposed implementing agreement which "only allows them [SOC Supervisors] to request consideration for employment in that city [of Atlanta]". (Decision, pp. 16-17.)
 Article I, Section 4 of New York Dock requires the "transaction . . . [to] provide for the selection of forces from all employees involved on a basis accepted as appropriate . . . and any assignment of employees made necessary by the transaction shall be made on the basis of an agreement or decision under this section 4." (Emphasis supplied.) Section 9 of New York Dock requires the carrier to pay the affected employee's moving expenses. There is nothing in New York Dock, any decision of the Commission, or any arbitration decision prior to this one which holds an arbitrator cannot impose a "fair and equitable" agreement or that he must accept a provision which violates Section 4 by merely "considering" employees for work taken from them. (Decision, p. 16.)
 If one compares the explicit, simple English in which Sections 4 and 9 are couched with the statements on pages 16 and 17 of the Decision and follows that comparison with a review of

 _3 No reason was given as to how the ATDA proposal exceeded New
    York Dock limitations.

the entire Decision and the record in this case, one is compelled to conclude that the Decision has fallen victim to egregious errors and would visit the bitter consequences of those errors only upon the NEW employees.

 M. G. MA ON
 Organization Member of bitration Panel

 May 19, 1987