SPECIAL .SO=~RD OF ADJUSTMENT NO. 605
:1:%RTI2S ) Erie Tacicawanna Railroad Company
T O TTf?
) and
DISPUTE ) Trane,portation-Communic=anon Employees Union
QUESTION
:.T ISSUE: Are employees who -were adversely affected
by the change in employment resulting
from Carrier's action of abolishing the
position of Agent-Operator at Lake Ariel,
Pennsylvania, a former Erie Railroad posi
tion, and transferring the work of said
position to occupants of positions at
_ Scranton, Pennsylvania, former Delaware,
Lackawanna and Western Railroad positions,
entitled to the protection afforded employees
by the Memorandum of Agreement of September
11, 1961?
OPINION
OF BOARD: The Organization's submission opens with the following
statement:
This dispute involves the Washington Job
Protection Agreement and Agreements dated
subsequent to September 13, 1960, the date
the Interstate Commerce Commission approved
and authorized merger of the properties and
franchises of The Delaware, Lackawanna and
Western Railroad Company into the Erie Railroad Company...
In this transaction, identified as Finance
Docket No. 20707, the Commission imposed for
the protection of employees adversely affected
as a result of the merger the protective conditions imposed in the New Orleans Union
Passenger Terminal Case, 282 ICC 271.
AWARD NO.
'Z
Case No. TCU-29-E
Subsequently, on :,<vntember 11, 1961, the parties
entered into a memorandum ac,rc-eient "made in connection with
the merger." It defined th= s:~niority districts as those
"which existed prior to the ~;,,~c~r, ~~ and provided for dovetailing.
The agreement contained a
ti~.A
~.·-~J of protective provisions.
Article III of the memorandr.::j -.c-recment stated that "any change
in employment by reason of tni.s irerger...shall be subject to the
procedures set forth in Secciu:u> -1 and 5 of the Agreement of
May, 1936, Washington, D. C. "
The claim which j.,: submitted here arises under the
1961 memorandum agreement. It is not based upon rights accruing
to employees under the Februln.ry 7 Agreement. The Organization
notes that Article VI, Section 3, of the February 7, 1965, Agreement provides that "Section 13 of the Washington Job Protection
Agreement is abrogated and the disputes provisions and procedures
of
this Agreement are substituted therefor." According to the
Organization,'jurisdiction over the memorandum agreement thus
is vested-in this Committee.
A threshold question must be resolved before the
Disputes Committee may act under Article VI, Section 3, of the
February 7 Agreement with respect to pre-existing Agreements.
It must be determined whether the 1961 agreement still prevails
and is to be enforced, or whether the parties instead are subject to the substantive provisions of the February 7 Agreement.
Article VI, Section 1, of the February 7, Agreement
provides:
Any merger agreement now in effect applicable
to merger of two or more carriers, or any job
protection or employment security agreement
which by its terms is of general system-wide
and continuing application, or which is not of
general system-wide application but which by
its terms would apply.in the,,future, may be
preserved by the employee representatives so
notifying the carrier within sixty days from
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AWARD NO.-'
Case No. TCU-29-E
the date of. this agreement, and in that
event this agreement shall not apply on
that ca.x.ri.er to employees represented by
such representatives. (Underlining added.)
On February 7, 1965, the 1961 agreement was in
effect and it was "applicable to a merger of two or more
carriers." It was also a job protection or employment
security agreement which was of "continuing application,"
within the concept set forth in Award No. 120. Thus, it
meets the definitions covered by Article VI, Section 1.
Under that provision such agreements did not survive
unless the organization gave the requisite notice to the Carrier
within 60 days of February 7, 1965. Failure to notify the
Carrier of a desire to preserve a pre-existing agreement meant
that it would not continue to apply and the February 7, 1965
Agreement would control.
Since the organization failed to give the Article
VI, Section 1, notice, the 1961 agreement was not preserved.
Consequently claims based upon it may not be handled by this
Committee. In the absence of any claim of violation of the
February 7, Agreement, the Question must be answered in the
negative.
A W A R D
The answer to the Question is No.
c ~c:z--~.
Milton Friedman
Neutral Member
Dated: July
ey
, 1971
Washington, D. C.
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