In the Matter of the Arbitration Retweent Pursuant
NATIONAt

 Mediation Case No. A-7/ 128, as amended by Article X11 of the September 26,1996 Agreement in Mediation Case No, A- 12718 when it terminated Claimants' protected

 are Carrier and Employees within the meaning

 and thi this Board

 Jurisdiction of the parties

 ad of the sbjet mater. At the neutral's request, the parties waived the Article 111,
 Section D thirty-day limitation for issuizatis decision.
 `. . meIser end . V. l=a were furloughed i

 t sip laborer positions were advertised for the R-'A Rail Gang, in

 their seniority district prior to December 1, 1981
 July 1, 1986 Norfolk and Western Agreement
Employees holding seniority, ruts prior to December 1, 1983, shall not be required to exercise their seioty beyond that embraced by their prior seniority; nor will their failure to exercise such seniorite= rights av~e any adverse el-Tect of their merger r rather eployve protection conditions,

 Programmed Cangs Arbitrated Agreement
Roster I



All employees holding seniority Under the several BMWE Agreements in place

 appropriate seniority list or lists according o their earliest valid seniority date in each elassifac;.tion. Ay disputes to which seniority fist is appropriate shall be promptly resolved between the B'E -Vice President (or his designee) and the Director [of] Labor Relations. If two or more employees have the same seniority date, they shall be placed on the seniority list in alphabetical order according [to] their last names.

 Section 5 Effect of Other r~j-1-rements
employment i'or DGS°s including, cat not limited to, rates of pay, filling of

 crareraces service the first work,
 that Article Ire ectio'7 of the 7 Aureeaent, as
particular circurnstance at issue in this case is wher

 position available to him in Ze exercise of hzs seniority riinlhts in accordance with cxising

 The key phrase in the quoted

 Oroanization contends. Under that. Aorcernent, DPG's were Creatcd "to perform production work, throu(Thout the -N-ortbik & W',-stcni Railway Company sy-stern Without regard to former property tiescar seniority districts." )I'G`s'Lr~-~,relov~r sTcr-,° <r~e

 the,,,,,ork season. well bevond Claimants' prior rights aarea.
 Two factors support that conclusion. First, Section 5 of the Arbitrated Agreement

 provides that if the Arbitrated Agreement does no

 of employees and collective bargaining rights. The MOA placed
 Nickel Plate territory into te N''s Eastern Region, tire region ire which the Claimants

 Letter No. I hire A clarified the prior rights extended t

 employees under Section IV of the MOA as follows:

be in aciition to existing prior rights. Accordingly, existing prior rights are not

 t limitd to:

 Tmck- Laborer 9Z'28!76; Clairnant IMN. Elam -Track Laborer 9'1'28/76. Cla,mant CA, Smels~r - Track Laborer T2 1/76, Fore an 5!16'98; Assistant Forenian I I'l 4 88.
 Claimants were placed on CPC; seniority lists with seniority dates as follows: Claimant R. r.. Beaver -
 employees granted certain referential rights in the 12/1/83

 Memorandum incorporated into the. July 1,

 were riot obligated to exercise seniority otsidotheir

 territones to remain eligible for protective benefits.

applies only to employee protective conditions imposed by the ICC;JSTB and not to the; Feb. `l job stabilization agreement negotiated by the parties. Such a. narrow reaing does

 or with the ordinary meaning ascribed to the term

 `bemploycprotcctivc conditions." the Organization argues. Employee protective

 cats consist of agency imposed provisions or a voluntary agreement that

 satisfies the statutory standards. "e Carrier has not advanced any logical gar persuasive explanation which. would call :or a different conclusion.
 Based opt the foregoing, the Organization submit= that it has -established its case. Rule 21c)l4),gage the Claim -ants choice as to whether to bid. on the Dl'G positions. The Claimants chose trot to bid ors the I~i-3 Rail Garapositions. .ln so doing, they did not forfeit their nrotec;ted status under the Feb, ? Agreement, The claim should be sustained in its entirety.





that Areecnt is conditioned upon

 6
 exercise of leis senior

 argues that Claimants failed to fulfill this obligation in the instant ease. responsibility to "retain or obtain" positions available to them. If the for tire i'G Laborer positions, they would have been

 elected not to bid for the positions anal thus forfeited any rights they gay have had to receive Feb. 7 protection benefits.

 ?(e(4) of the 1986 Agreement beteen arid

 is not applicable to the Feb. 7 agreement. Carrier submits that when the Feb.

 7 Agreement was originally negotiated its 1965, it did not apply to

 in accarane with existing rules or agreements." Carrier

 intended by the parties to apply to the Feb. 7 Agreement.

 Ef the July 1. I~->6.NW-Wf`.. Agreement coed not have envisioned or

 intended that the lanaua~e contained in Rule 2fe,(.) would have any application to a sepate job stabilization agreement that was not even applicable on tlaeir property.
 Carrier acknowledges that in 1996, Feb, 7 became applicable for the first time to the former N`ancl WAl3 properties. Significantly. however. no ext:etit>ns2o the "retain
      car obtain" requirements were agreed upon. I;ncler the circumstances, ft mast be


that tl;ere,,vas no intent to incorporate ale 2(e)(4) poor rifts as ari exception

 to the Feb. 7 requirements imposed upon an enplovee to retain his protective benefits. Had te parties so intended, they wouId have included fanaage similar to :fat seen ; 11

 5pe~l B~Lar~ of ~=.7 ;Award No,bI I . here tic parties seeifi.ed in n
 implementing agreement subsequent to Feb. 7 drat employees were not obligated to accept positions off of their prier rights district "ire order to receive ay benefits pursuant to the Mediation Atyreeent ref Februaryy 7, 1965 and failure to do so will riot he used to assert forfeiture of bnefts nor serve to offset any benefits due.=.

 ire contrast to that case, the exclusionary lagwae relied

 the instant matter does not specify that it applies to Feb. 7. On the contrary, it specifically applies tip "merger or other employee protection conditions ..." Carrier asserts that Feb. 7 is neither- it is a job stabilization afire:; tnent - and was Trot applicable on the property at the tie the exclusionary language was neoodated.
 Claimants were required to exercise their seniority to obtain positions even i those positions were located off' of their prior seniority territory, Carrier submits.

 result, the claim must be clerxioc_.

 to be protested employees under Feb. 7. As a

 .£yreement; as amended. very it deterrnined that Claimants

 ceased to be protected employees after they declined to exercise heir seniority to obtain positions on the w3Rail Gang. The answer tttrrts its lame part on the interpretation ad application of the following kmguaZ~ge set forth in Article It., Section 1:

    An employee shall cease to be a protected erpi<»tee In case oI'his...failure ro retain err obtain a position available to hm in the exercise iris senioriq rights in


accordance wlt~: As a starting point in our analysis, we

 Rule 2(et(14) of the July 1, 196 Agrement was intended as one of the -existing
 avreements" referred to above. Tie ciisacrcement stems to a great extent from diffrio

 interpretations of'the term "existing." From the

 terra must e. examined in light of the underlying purpose arid historical. context in which

 Agreement as intended to apply.

 as s plain on its face and mu

 :

 tea the parties wen the a~re:eurcant was '"Titten 'I`

 Ordinarily, intent can best be ascertained from thwors used in they

 agreement provisions which

 times when the: intended meaning of the language is not. so clear. Ambiguities

 can arise rc>in the failure to foresee a

 to new car unexpected situations. Parties may insert v,,=ors that are inexact or vague. In

        of the circuntstances surronine t¢ contract at the tier it is ae and the subsequent


that contract language over tinie. We

 history of the agreement language in dispute.
 It is true that, when the °e. 7 Agreement News negotiated in 1965, it did riot apply
 to the: Carrier territories now at issue because the Organization opted, pursuant to Article
 VI of Fe. 7. to retain the protective beets of the NW Merger Agreement in lieu I`
 those containcl ire the Feb. 7 Aaremet. It is also true that wen Rule-')(e)(4) was

 oril2inal.ly were negotiated to

 to which Artie:le II, Section l of the Feb. 7 oreeens

 the 'arrier's territory, the

 ~`

 Oroalzatira ire which i2 rec.oL,iretat "effective September 26, 1996, ~NIS
 ?'e)(4) prior riphts were unaffected under this Arbitrated Areerent was of challenged

 Indeed, the preservation of those pier rite was recogmized by the

 Agreement and

 `?00Memcrandtzm of Understac3inwhici^S expresses the artacs' intent to rsct-~c Zuie

 ) cart the territories t issue here. Thus, it must a concluded that wen Fed. 7

 Carrier nevertheless argues that the omission of specific reference to Rule (?(c)(4) in the 1996 amendments to Feb. 7 should be construed to mean that it was not intended to any. We tc> not find teat argument persuasive. Agrec.ets must be interpreted so as t avoid nonsensical results ire favor cafaitcrretatin that is reasonable. If the Carrier's

 we would necessarily have to conclude teat arty and al

 21

 Article IT. Section 1 of Feb. 7

 .

 enumerated wheat c. ? was amended.

            ryes or agreements" w i


is wart-anted here, If the parties dad -ished to restrict the
 Accordingly, we find that the:, modifications to Fe, 7 -- and particularly the Carrier's November 18, 1996 letter acknowledging that Organization reprsented employees would henceforth have Feb, 7 protection _-must ,$: given their normal significance. Preservation of the language of Article II, Section I of Feb. 7, with its

 specific reference to "existing rles tar agreements," coupled with

 Carrier property for the first tune ire 1 996, must reasonably be

 mean that those rules or agreements then in existence would aSply when determining whether car not ate eloyee bid failed tca retain r obtain an w~ailable position ire

 with the employee's seniority rights. Rule (e)() is one such existing

 d to

 nsc:iority rights prior to December 1, 1983, shall not be

 Carrle~

 7 is a job stabilization agreement negotiated by the ancl thus it falls outside the scope of the protective conditions contemplated under

 Wa do cat believe te tanouae pan he so raa-xv1v construed. The use of

 conditions imposed y the lCC: `Tas a

 tic

 the protection
 established that a meaningful distinction cri be made between ersplor ce protections that e agency imposed or the result of a voluntary agreement,

 Once that finding his been made, it is clear that the Orgmi.zation's claim has merit. Climats exercised seniority in accordance -with existing arreements. precisely as

 specified an article IT., Section 1 of the Feb. 7 Agreement.

 they hold seniority

 rights prior to December 1. 1983, they were not. required to exercise those seniority rights to the E)f'G positions which were beyond the. territory embraced by their prig seniority. Put another wa~.r, RuIe ?(e)(4) prior rights under the 1986 Agreement sun~ived the 1992 Arbitrated ALreement mid were cane of the "existing aTp cements" under Fib. i that gave the Claimants the option of bidding or not bidding on the DPG positions, Their decision to refrain from bidding could not result in the forfeiture of their protected status under the Feb. 7 Agreement. VI. AWARD
Donald F. Griffin

 Or miizAtiMeber
 Tie Carrier Members of SBA 007 rarely issue written dissents to awards tendered y this Board: ho,.sever, in this instance we are compelled tdo so because of the significant errors contained within the ward in Case No. 16.

 The most glaring error is tire Board's mi-statement of te Carriers' position

 ensuing two and one-half pages of analysis by the Board of a position the Carriers did not take in the handlirsy of this claim on the property car before this Board.

 At the ottom of page of the award, the majority states

      .-s a stczrtinla in point in our aata4>.sis, ive note ihat uhe pal-ties zsq,( gree as to


rules or aZ,(reernertts " r~es°r~ed to above ire Article I, Section 1, of the February 7, 1965 Job Stabilization A~-,reernent. The disagreement stems to agareat extent from differing
                    .

that tea~manust be e_a:amirL?d gn ~~ ujuh~rl)~hislor;cal context in
 lie Mc2A ac tO What,tl~e l~z~a~c~,~~tcc`a~t ~i~ agreement -was mv~rittea. .
                      re~i:~In


A thorough reading of tlaCarrier's handling of th

 handling of this dispute before the Board, ire both the written submission and the oral arguments
 nnacie to the Board, clearly shows that the Carriers have never when the position described
 above. 'fills faw was pointed out to the niajoz-ity, ut. I it~=~plieal~iya they elected to lssUe the
 award its its flawed state. Contrary to the m:s-stated Carrier position above, the Carriers
 eznpaticallyi believe that the phrase "c.fstfng rules and c,rement.s" as it appears in Article 11,
 Section 1, of the Job Stabilization Agreement [JSA, triust be inter~-,)reted and applied to nnearc tl-ie
 rules and a~zreercnts as diev exist oil the date that tie claim or controvers* arises.

 `I9hiis blatantly moneous nli,s-statcc.vent of the Carrier' PPosition appears to 1ha blinded the f3o;xrd majorit-v ?o the Carriers' real p0sztlon, ,%,hich rests on tv°o fundainental points

 reoarclinL, the interplay between Rule 2(c)(4) and Article II, Section

 seniority, rights hai!e ai~y adverse
language. Stated another Nvay, It ?s

 patently absurd to conclude that firic l-sardes in l intended to exempt cer~ain emplo-Ye-es, From thear C?bltea'Iori to Fully exercise their senzorl".y i`It?iitS t£) obaII~ o3" retain a position in lfl"e normal exercise =>f tl~ir ser, i~ritV ,~;Yha ~,ir~ I~.~ir~ their ne%v3v expandd se cniorit~F ricrfhts) under £~e'SA7

 clad not lha~ a any application to 4huse croplo~-ees. anti there ~~as no reason to

 believe that it ever %voulcl a-p ilt~. It as pVecst~= ~0i-;1ese reasons teat the Carrer saw no good In
                          _2_


166 to reemphasize the intended application of Rule 2(e)(4), which the majority relies upon to support its erroneous interpretation of Rule 2(e)(4)

 Second, although the majority dedicated two and one-half pages to the analysis of a position the Carriers did not even advance, they gave scant attention car analysis to the Carriers' other primary contention. `'rte Cal-riers' contended that the phrase "naer'r car other employee protection conditions" contained in the 1986 Agreement was litited to those protective c=refits derived born transa=ctions requiring TB (fo in eriy ICC) approval, with such approval being conditioned n the Carrier providing a specific level of protection to employees ati°cted by the transaction as imposed y the ICs,=T B as a condition for their approval of the transaction, 'rhe prase "protection conditions" is a term of art in the railroad industry (the only industry in the country subject to such conditions) and reference to conditions is widely known and generail.

 reference to the ty=pe of protection emiinatin« from a transaction requiring

 iCO`TB approval. Since colieciiveiy bargained employee protection benefits (such as under the JSA) are agreed upon voluntarily y the parties and riot as a condition for the approval of a transactions the term protection conditions is not used to describe these agreernertts or the benefits which flow from. uch areetnnts. It is noteworthy that during the handling of this case before the oard, the Organization did trot produce a shred of eidenco to support their argument as to hctv this phrase sitold tae interpreted. Yet, the majority, who spent pages analyzing a position which the Carriers did not even advance, rejected the Carriers' actual position,,vitont any analysis of the Carriers' position or the substantial evidence td argument submitted in Support Of its position, With the Majority relying only upon its "belie:" Without providing any foundation fear or explanation of its "belief", the majority simply stated: "We do riot believe the ianguacan a so narrowly construed." In a futile effort to justify this unsupported conclusion, tLlte ttt:~o<ity sought the comfort of the phrase "or other" which precedes the words "ernployee protctiou conditions" in the 1986 Areement to .speculate that the protection conditions referred to at the 1.986 Aereement contemplated "more than the protection conditions itposeci Y the IBC/STB as a result of ntcrocr." Ilo%°evcx, had the iiajority looed carefully at the documentation provided by iite Carriers regarding GI'SB imposed conditions, they would have notied that the IC:USTIR imposes protection conditions for other typcs of 'r besides inerers1.;'rrYork Dock Conditions), e.,ly., abandonment of operations (Oklhorna condit;ors); a:qkuistion of control-stock purchase (Southern-Central cfGeotgia Conditions); aba ttdownent ohrailrad lines (OregO>n Shortr'~:; Conditions); trackage rights (eVort1k tic.°t°t-t-li>~t:'orllern C'onditions); and leas,- of trackage (aVenocino Coat Co aditions). Thus, it is clear that the words "or other" <a: the phrase "fn"ercr or oihe'r~prorection tom-is'ZI77S" does riot automatically lead to the conclusion that thphrase go-'s beyond TCC/fSTB imposed coI<di-ions and aso encornpasses collectively b-ar_gained agreemients providing protective benefits Getilolo'v`ee s. Quite` to the enuzary, the ph:a--, "mel" e)' or other p7'f.~.'37f.t`t conditions"
                                              i°.n


to protection conitins, imposed by the It:: C'S B as a condition for the e approval

 ofd mercer `u'7 other" transactions requiring ICGSTaprov?i, such as acban oonnints,

 tracIkc"3`*~'_e as~,hai and leases. WhIile the majority cites as "careful 7`C'vse)d` Qf ll:he
evidence sutnnitted on this pdtr:¢"citlar°poini" (ltvotof pae t 27), such a~viVis not reectedii
 an akvat'd 0-at ~s £°C)?luplet:'ljj lac1king in any t~ ~" o? S.IlbSi?";tlv;- iina~rSls Of one ofl, C ii`I°:eis'
 pr.iz"IiiuD% positions.
 ire Case 16 did riot trl~
s set forth y the partife¥n tfgeir ,,N-: