PARTIES ) Central Railroad company of New Jersey
 TO THE ) and
 DISPUTE ) Brotherhood of Railroad Signalmen

 QUESTIONS
 AT ISSUE: Claim of the General Committee of the Brother
 hood of Railroad Signalmen on the Central Railroad
 Company of New Jersey that:



















                                    Case No. SG-35-E


          make no further changes unless and until proper notices are served and implementing agreements negotiated, and allow any and all benefits to which any signal employes may be entitled under any existing agreement such as--but not limited to--compensation, fringe benefits, moving and/or transfer allowances, separation allowances, etc. This to include the employes named in paragraph (2) above, and any other signal employe who has linen or may be adversely affected by the chang,


OPINION
 OF BOARD: Carrier is under the jurisdiction of the 1. S. Dis
 trict Court, New Jersey. In 1971, it ap;. ied to the
 Court for the right to abandon its lines in Pennsylv"M.,La. It
 sought and was granted permission to file with the Interstate
 Commerce commission under Section 1(18) of the interstate Com
 merce Act, as amended, for a certificate of present and future
 public necessity which would allow it to abandon such lines,
 constituting about 175 of the 591 miles of oT,vned and leased 1400
 1 ine s.

 On March 31, 1972, pursuant to an order of the Court, Carrier temporarily ceab,:d operating its lines in PeansyIvania, continuing to operate in New Jersey. The abandonment became permanent following yen order of the ICC. On April 1, 1.972, the Lehigh Valley Railroad began operating over Carrier's former lines in Pennsylvania, by virtue of an ICC order to that effect.

 As a consequence of the abandonment by carrier a number of employees lost their jobs. They claimed the befits of the Washington Job Protection and the February 7 Agreements.

 A number of procedural and substantive questions have been raised by the parties. One issue is Carrier's contention that, aside from other considerations, the February 7 Agree-lent could not be effectuated in this case because of tlbc, "pApossi oility of performance." The February 7 Agreement <_oate«rplated that Carrier would continue to operate its business, rather than abandon its entice operation in Pennsylvania, Carrier axgut~. Thus, it was said, a fundamental, changed condition "excusing the Promisor" from his obligation, because the subsequen¢ ao., e..istence "of the resources necessary for the fulfillmesi2

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                                    AWARD No. ~7 rase No. SG-35-E


According to Carrier, the discretionary nature of the abandonment sections of the Act permit the ICC to set aside pre-existing agreements between the parties which contain more liberal benefits than the Commission deems suitable. In support, a case involving another regulatory agency, the CAB was cited (Kent v. Civil Aeronautics Board, 204 Fed. 2d, 263), which held that "a private contract must yield to the paramount power of the Board to perform its duties under the statute." Consequently, Kent held that the Board's orders were not invalid because they conflicted with a collectivebargaining agreement. Under that analogy, the ICC, unhampered in abandonment cases by the mandatory requirements of Section 5(2)(f), certainly seems to possess the authority to set aside any portion of an agreement between the parties, including the February 7 Agreement and the Washington Agreement.

 A primary question in this case is whether the ICC did set aside the February 7 Agreement, since all but three Claimants are protected under it; Claimants Horn, Lauer, and Fehnel would be entitled to the Washington benefits, at most, if that Agreement survived here. Its decision is not perfectly clear. Carrier contends that the ICC, not the Disputes Committee, should interpret an ICC order, if interpretation is required. The organization holds that the February 7 Agreement is in effect, it is binding, and its conditions should be imposed on Carrier by the Committee.

 Whether or not the February 7 Agreement is binding on Carrier is a matter for the Commission. While the Committee can interpret and apply the Agreement, it cannot overrule the commission and award those conditions, if the Commission meant to withhold them in this case. Indeed, the Commission asserts its own power when it says (pp 123-124) that even if Carrier "assented to high-cost employee guarantees, we would refuse to impose the elaborate conditions referred to in the brief."

 Yet, while certain conditions such as severance and vacation pay for all employees are provided by the ICC decision, there appears to be no definitive statement that some or all of other pre-existing protective guarantees are, to be eliminated for those employees who were protected under them. Where so much is at stake for both employees and Carrier, it would be foolhardy to base this Award on language not absolutely explicit, when ultimate power of interpretation does not reside in the Disputes Committee but in another body.

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                                      AWARD NO. 5

                                      Case No. SG-35-E


    This approach is in accord with two BRAC cases recently decided by the Disputes Committee in Awards-No. 374 and No. 375, also involving Carrier's abandonment of its Pennsylvania lines.


    If the Commission intended to make either or both job-protection Agreements applicable to protected employees, Carrier's obligations under them can easily be determined. If they were not intended to survive in this situation, then the Disputes Committee has no authority to grant protective benefits. For that reason carrier's proposal to refer the question to the ICC for interpretation is upheld.


                          AWARD


            The case is remanded to the parties so that they may obtain from the Interstate Commerce Commission a ruling as to whether employees were to receive the benefits of other Agreements, under the decision in Finance Docket No. 26659. The case is held in abeyance pending the interpretation sought.


                  ~z.T, a-Z- __~-,

                  Milton Friedman, Neutral Member


    Dated: Washington, D. C.

    March 22, 1974


.a ya3a r

 06t 8 9 aVw
                                    AWARD No. 3 7 7

                                    Case No. SG-35-F


            Pennsylvania abide by any agreement reached between CNJ employees and the employees of the acquiring carrier as to an equitable division of the remaining work; and (2) that we impose upon CNJ and the acquiring carrier or carriers appropriate protective conditions, in no event less than those required under the provisions of section 5(2)(f). and as are appropriate in this type of transaction. It also requests that any abandonment permitted herein should be conditional upon another carrier actually "taking over".


The ICC neither mandated the Section 5(2)(f) conditions nor made reference to the Washington Agreement's conditions as sought by the organization here. Rather it held on Page 123:

            Imposition of protective conditions is not mandatory under the statute governing section 1(18) application g. However, they may be imposed in our discretion based upon the facts and circumstances under consideration. tae affirm our earlier holdings herein that the applications of CNJ and IV are properly before us under the provisions of section 1(18). We reject the employees' arguments to the contrary.


As the foregoing indicates, Section 5(2)(f) and the Washington Agreement were not invoked by the Commission because it acted under Part I, Section 1, 18 and 20 of the Interstate Commerce Act, which provides:

            Section 18


            ...no carrier by railroad subject to this part shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment...


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                                              77 wave

                                    AWARD No. .-

                                              3


                                    Case No. SG-35-E


            Section 20


            The Commission shall have power to issue such certificate as prayed for, or to refuse to issue it, or to issue it for a portion or portions of a line of railroad, or extension thereof, described in the application, or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its j Igment the public convenience and neces:. .y may require...


Thus abandonment, not coordination, was foul' by the ICC and under Paragraph 20 the Commission has the auth,rity to fix "such terms and conditions as in its judgment the public convenience and necessity may require." This discretionary authority is far-reaching. It is magnified by comparison with the limitations on the Commission in Section 5(2)(f) which is couched in mandatory terms. That provision states that the Commission shall require certain protective arrangements so that employees will not be placed 'in a worse position."

 The Commission has held that the Washington Agreement is not superseded by conditions which the ICC imposes in cases of joint actions sought by carriers. It has taken the position that Carriers must first comply with collective-bargaining agreements before the ICC-imposed conditions become effective. But there is no evidence that any of this pertains to abandonment cases.

          in fact, the ICC origiqally disclaimed the power to

fix protective conditions in such cases. But in 1942, in
 Interstate Commerce Commission et al. v Railway Labor Executives
 ';ssociation (315 U.S. 373, March 2, 1942), the U.S. Supreme
 Court held that under Section 1(18) of the Act, the Commission
 did have such authority in abandonments. What is significant
 in this Section of the Act is the absence of mandatory condi
 tions like those found in Section 5(2)(f). Consequently the
 Commission has great latitude in determining what kind of bene
 fits it chooses to bestow upon employees when an abandonment
 is involved.

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                                        AWARD NO. 3 77

                                        Case No. SG-35-E


the contract" created an objective impossibility to perform.

 Aside from whether or not adequate resources are lacking to fulfill contractual obligations, the February 7 Agreement was executed under conditions where Carrier should have contemplated the possibilities emanating from its financial difficulties. As of 1964, the year in which the February 7 Agreement was being negotiated, Carrier had had a series of annual losses at least back to 1958. None was under $2,000,000. In 1964 it was over $8,000,000. While losses rose considerably in later years, it did not require any great acumen in 1964 to anticipate that eventually some stringent measures would undoubtedly be required. Obviously partial abandonment of those lines which were draining the Company's resources would come within those possibilities.

 Moreover, the February 7 Agreement is a blanket grant of protection to qualifying employees, limiting protection only for specific reasons, as in Article I, Sections 3 and 4. Abandonment is unmentioned, although not long before the February 7 Agreement Carriers in 1964 had negotiated a protective agreement with the Shop Crafts, which specifically mentioned abandonment as one reason, among others, why Washington Agreement benefits would be paid. Thus, although the February 7 Agreement is just the opposite, granting benefits except where there is a named basis for relief, abandonment went unmentioned. Had Carriers intended that such an eventuality would justify suspending or terminating benefits, it could have negotiated it, along with the decline-in-business formula or emergencies. Given the blanket nature of the protective guarantees, intended exceptions should have been identified.

 The organization argued that Carrier improperly expanded the bases of its position in its written presentation submitted during the Committee's deliberations. Actually the detailed arguments in carrier's written statement were largely the development of positions taken in Carrier's original submission, constituting more refined and analytical appraisals of earlier contentions on the Washington Agreement and the February 7 Agreement. As to the jurisdictional argument raised following the original submissions, if the Disputes Committee actually lacks jurisdiction it cannot be conferred by silence on the point at earlier stages of handling.

 One of the major substantive questions is the applicability of the Washington Agreement. Section 2(a) of that Agreement provides:

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                                      .r

                                      AWARD No. 5 7 7

                                      Case No. SG-35-E


            The term "coordination" as used herein means joint action by two or more carriers whereby they unify, consolidate, merge or pool in whole or in part their separate railroad facilities or any of the operations or services previously performed by them through such separate facilities.


Section 3 refers to two or more carriers which "undertake a coordination." Section 4 describes a requirement for notice to interested employees by "each carrier contemplating a coordination." None of this is present in the instant situation. There was no contemplation of a "coordination" with Lehigh Valley. carrier's action was a unilateral one, prompted by an aim to survive, to be attained by divesting itself of a costly portion of the operation with approval of the District
 Court and the Icc.

 As Carrier's submission notes, "CNJ had no voice in the utilization of these employes formerly on the Pennsylvania Division, no control over the plant, and no income from the operation in Pennsylvania." At the time that the ICC approved Carrier's abandonment of the Pennsylvania lines, the only relationship to Lehigh Valley was that the latter had an TCC order to operate over those .lines. Page 102 of the ICC Opinion in Finance Docket No. 26659 states, in part, in denying the Organization's conLexiiavn UnaL a coordination was involved:

            Actually IV has not sought authority to purchase any portion of the properties of CNJ or L&NE. Conceivably, one or more appropriate lease applications may be required in the future and such would be considered on its own record.


In Finance Docket No.. 26659 the TrC was reqa-.:sted by the UTU to apply the protective conditions set forth in Section 5(2)(f) of the Interstate Commerce Act, which 9..s applicable
 to .a coordination. The ICC opinion note on Page 9d:
 In view of its contentions and supporting
 arguments, UTU req~7:ests us to require ' %te
 following: (1) That any carrier acquL.'3
 any portion of the CNJ's operations in _,p

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