In the Matter of Arbitration
 Between




Arbitrator

 Hearing

 Appearances

 Post Hearing Briefs Received

 Issues

 DECISION

 Finance Docket No. 30,000

 Jacob Seidenberg, Esquire

 December 13. 1984

 Brotherhood of Locomotive Engineers f1. A. Hirst - Vice President E. E. Watson - Vice President

 Carriers
 R. D. Meredlty-Director Labor Relations -
 Union Pacific
 R. P. Mitchell-Director Labor Relations -
 Missouri Pacific

 -December 29, 1984



Background: The instant dispute has been precipitated as a result

 of the Interstate Commerce Commission approving on October 20,
 1982 the petitions of the Union Pacific RR, the Missouri Pacific RR and the Western Pacific RR to consolidate and create a raw railway system.
 In the course of effectuating this new railroad network, the affected Carriers sought to achieve certain "common point consolidations". The parties to this dispute reached agreement on seven common points, but were unable, after six conferences, to reach agreement at the following three common points: Selina. Kansas, McPherson, Kansas; and Beloit, Kansas.
 On October 30, 1984, the disputants agreed to submit the matter to arbitration, as provided for by Article I. Section 4 of the New York Dock Conditions. These Conditions had been imposed by the Interstate Commerce Commission upon the Carriers as protections for the employees of the three Carriers affected by the consolidation.-
 The parties selected the Undersigned to hear and decide the dispute. -
 On October 19, 1983, the ICC Issued a Decision under Finance Docker No. 30,000 (Sub - No. 18) in response to petitions filed both by the OLE and UTU,relative to the Commission's plenary jurisdiction over rail consolidation v!_s a vii the requirements of the Railway Labor Act.
 The substantive aspects of the dispute stem from the notices served by the Carriers on the Organization pertaining to the selection and assignment of forces at the three common points, and counter proposals thereto. However, before we can deal with the
 - 3 - merits. we must review a procedural objection which the Organization has int_rposed to the Arbitrator's jurisdiction to consider the dispute.
The Organization notes that Article 1, Section 2 of the ICC prescribed New York Dock Conditions states:
The Organization maintains that the Carriers seek to avoid their statutory obligation under the Railway Labor Act, not to unilaterally change rates of pay or terms of working conditions, except in accordance with-the.provisions of Section 6 of the RLA. The Organization specifically protests the Carriers' efforts to get rid of the Local Agreement of August-10, 1946 in effect on the Missouri Pacific as well as other working conditions. The Organization stresses that at each of the three common points the Carriers do not propose to abandon tracks or facilities. It just seeks to substitute Union Pacific employees and Union Pacific rules for Missouri Pacific employees and Missouri Pacific rules without complying with the RLA requirements.
 The Organization asserts the explicit language of Section 2 of Article I, proscribed the Carriers from utilizing Section 4 of Article I as a means to change existing agreements, except by
 -4by mutual consent. If further asserts that it would be ironic to transmute the New York Dock Conditions from a shield designed to protect employee interests to a sword to deprive employees of their Railway Labor Act protections.
 The Organization alludes to several (6) arbitration awards which have found that arbitrators acting under the mandate of Section 4 lack the authority to modify or vitiate existing collective bargaining agreements, in light of the explicit provisions of Section 2. The Organization notes that the Carriers, despite all of the cited awards, did not even request the ICC to overrule these arbitration awards. The Carriers should not be permitted in the instant case to overrule these well reasoned awards.
 The Organization notes that the October 19. 1983 ICC clarification has been appealed to the Federal Courts and the appeal is still pending.
The-Carrier states-that since the-ICC issued-its October 19, - 1983 Clarification, the jurisdictional question raised by the Organization is moot and settled. The ICC has held its authority over railroad consolidations is exclusive and plenary, and its approval of a transaction exempts such a transaction from the requirements of all laws including the Railway Labor Act. The Carriers note that the ICC Clarification states:
The Carrier maintains that the arbitration awards rendered prior to October 19, 1983, itiust be deemed to have been superceded by the ICUs Clarification Decision. Since the ICC authored the New York Dock Conditions. its holdings as to the intent and purpose of these Conditions must be deemed superior to any arbitraI decisions interpreting the Conditions. The Carriers add the ICC Clarification makes It patently clear that no existing working conditions in a collective bargaining agreement barred the execution of the ICC approved Consolidation.
 The Carrier further stresses that.since the ICC rendered its Clarification Decision there have been two arbitration awards which held there was jurisdiction in an Article I, Section 4 arbitration proceeding to consider changes in existing collective bargaining agreements.
 The Carrier states on the basis- of the present record there can be no doubt that this Arbitrator, acting under Section 4, has the jurisdiction and authority to approv.e.the transfer, of work from the Missouri Pacific to the Union Pacific and place the transferred work under the operating rules and collective bargaining agreements of the Union,Pacific.

 Findings: (Procedural?
 on the basis of the record before us we conclude that we now have jurisdiction to consider the dispute involving the allocation and assignment of forces through implementing agreements drafted pursuant to New York Dock Conditions, even though these implementing agreements may result in the assigned forces operat-
 ing under a different set of operating rules and different labor agreement than the ones under which they formerly functioned.
 We find that, despite the weight of arbitral authority that was formerly in effect prior to the ICC October 19, 1983 Clarification Decision, those arbitration awards must now yield to the findings of the Clarification Decision, i.e., that in effecting railroad consolidations the Commission's jurisdiction is plenary and that an arbitrator functioning under Article I, Section 4, of the labor protective conditions. is not limited or restricted by the provisions of any laws, Including the Railway Labor Act, and that the arbitration provisions of.the New York Dock Conditions are the exclusive procedures for resolving disputes arising under the Consolidation. We find that the interpretation and application of the Commission as to the scope of its prescribed labor conditions in the instant case, has to be given greater weight than an arbitration award also pertaining to the scope of these labor protective conditions. _
 When we turn to the substantive aspects of the dispute dealing with the three common points, there are three separate and discrete matters which will be treated in considering the proposed implementing agreements.
This point is currently served by both the UP and MP. Both Carriers serve 1t by freight assignments. The UP also serves it by switch engine assignments, and the MP by a traveling switch engine.
 The Carriers now propose to service Salina by a single up traveling road switcher which will operate within a 50 miles area of Salina under the VP's operating and schedule rules. The MP traveling Switcher will be abolished.
 The Organization proposes that the Road Switcher shll be operated by MP employees and it will not perform any switching within the switching limits of Salina.
 The Carrier also sets forth how road operations will be handled into and out of Salina and off the MP's Salina Division. These proposals are to have UP crews handle traffic routed via UP while MP crews will handle traffic routed via the MP. Employees adversely affected will receive the protection of the New York Dock Conditions.
 The Organization stresses that MP engineers will only be able to exercise their seniority on their own seniority district. If they transfer to another seniority district, they would be listed after the most junior employee in that-district.- The Organization stresses that since the New York Dock Conditions now offer maximum protection for only six years, this does not effectively afford any meaningful protection to younger employees. It urges the work should be prorated on the basis of engine hours or road miles.

 Findings:
 After reviewing the detailed proposal contained in the draft implementing agreements of the parties attached to their respective Submissions, we conclude that the Carriers Implementing Agree-
 ment (attachment No. 1) with its addenda, more effectively achieves the consolidation and coordination of the operations at Salina. We are not at liberty to overlook that the ICC approved the consolidation under the common control of the Union Pacific Railway System. Accordingly, we find that Carriers' Attachment No. 1, dated September 18, 1984, constitutes the appropriate arrangement for the Salina operations and it is to be the implementing agreement for the Salina operation.
McPherson~is serviced by both the UP and MP. The Up services McPherson by a local freight assignment operating out of Salina while the MP services it by a local freight assignment operating out of E1 Dorado. Salina is 35.4 miles from McPherson while El Dorado.is 61.7 miles from McPherson.
 The Carriers propose to serve McPherson by combining both: local freight assignments into a single local to be governed by UP schedule and operating rules. The UP would man the operation for five months and the MP for seven months. The Organization's counter proposal is to apportion the work - 36% to UP and 64% to the MP. The Carriers propose Salina to be the home terminal, and the Organization counter proposes that Salim be the home terminal, when the UP engineers are manning the assignment and El Dorado will be the home terminal when MP engineers are protecting the work. The Organization further proposes that when MP engineers operate their a9loted proration they will operate under MP rules and MP schedule provisions covering rates
 of pay and working conditions.

 Findings:

 We find that the objectives of the coordination and consolidation would be facilitated by the Carriers' proposals as set forth in their Attachment N0. 2 attached to Carriers' Submission, with one exception, namely, that when the MP engineers operate the local freight assignment their home terminal should be E1 Dorado rather than Salina. The great bulk of MP engineers live in the vacinity of El Dorado and there is no persuasive reason why these engineers should travel approximately 90 miles to work that assignment. However, we~find that in the interest of uniformity end consistency of operations that the assignment should operate under UP rules rather than shift-back and forth periodically between MP and UP.
 Accordingly, we find that Carriers' Attachment No. 2 with its Attachments-set-forth-in its Submission, except as herein amended, shell constitute the implementing agreement to handle the UP and MP treffIc-between Saline and -E1 Dorado. --

                        Beloit

Beloit is serviced both by UP and MP. The Up services It with local freight assignients operating out of Salina while the MP services it with. a local assignment operating out of Concordia. In addition the MP operates several local freight assignments operating west of Frankfort such as:

                Atchison-Concordia Local

                Concordia-Stockton Local

                Down-Lenora Local

The Carriers propose to abolish these listed MP operated Local Assignments and serve Beloit with a consolidated operation to be operated by MP crews because most of the employees living near Beloit are MP employees. The consolidated assignment shall operate, however, under UP rules and schedule provisions.

 The Organization contends there is no valid basis to compel MP employees to operate UP rules. The MP employees should be allowed their own rules, rates of pay and working conditions when they function under their allocated proration.

 Findings:
 We find the allocation of work of Beloit as proposed by the Carriers is fair and reasonable and therefore the description of work set forth in Attachment No. 3, attached to Carriers' Submission. should be governed by the Carriers' proposed implementing agreement.::
 Accordingly. Carriers' Attachment No. 3 with its attachments shall constitute the implementing agreement to handle operations at Beloit, including the designated territory listed in aforesaid Attachment.
 In summary we are aware that any consolidation of rail properties disturbes the status quo and is unsettling to the affected Organization and employees. However, the Interstate Commerce Commission held that the Consolidation here in issue, with the prescribed labor conditions, Is consistent with the public interest (366 ICC 619), and it must be accepted disturbing as it may be, even to the extent of doing away with the MP August 10, 1946 Local Agreement.
 We find that the Carriers have sought to select and assign the forces, in a fair and reasonable manner, and still achieve the efficiency and benefits which were the prime motivations for seeking the Consolidation. We find that conducting all three common point operations under the UP operating rules and schedule rules are not inconsistent with these objectives, since the UP has common control of the consolidation.
 We conclude that the approved proposals, as amended, covering the three common points are an appropriate method for the selectiorf and assignment of forces, and should be affected by the proscribed implementing agreements.

 Decision:
 Pursuant to Article i, Section 4 of the New York Dock Conditions, we find that the implementing agreement set forth in Carriers' Attachment No. 1 shall be the method for selecting and assigning the forces for the Salina operation.
 We find further that implementing agreement, as amended, set forth in Carriers' Attachment No. 2, shall be the method for selecting and assigning the forces for the McPherson-El Dorado operation.
 We also find that the implementing agreement set forth in Carriers' Attachment No. 3 shall be the method for selecting and assigning the forces In the Beloit operations.

                              J b Seidenberg..

                              A trator