1225 CONNECTICUT AVENUE, N.W.,WASHINGTON, D. C.20036/AREA CODE: 202-659-9320

 WILLIAM li. DEMPSEY, Chairman Ii. E. GREER, Vice. Chairman ROBERT BROWN, Vice Chairman
 W. L. BURNER, Jr., Dir_Ctor of Research J. F. GRIFFIN, Director of Labor Relations
 D. P. LEE, General Coun,~1 T. F. STRUNCK, Administrator of Disputes Committees





















    cc: Chairman - Employes' National

    Conference Committee (10)

    Messrs.

    C. L. Dennis (2)

    E. J. Neal (3)

    S. G. Bishop (4)

    C. J. Chamberlain (2)

    A. C. Crotty (2)

    R. W. Smith (2)

    M. B. Frye (2)

    W W. Altus (2)

    /T J. Berta (2)

    Lester Schoene Esquire (2)

    R. K. Quinn, Jr. (3)

    W. F. Euker

    T. F. Strunck

                                        AWARD N0. 396

                                        Case No. CL-103-W


                SPECIAL BOARD OF ADJUSTMENT N0. 605


PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
 TO ) Freight Handlers, Express and Station Employes
 DISPUTE) and
 Pacific Fruit Express Company
 QUESTION Did the Pacific Fruit Express Company violate the Na
 AT ISSUE: tional Agreement of February 7, 1965 when it ordered
 protected employes J. W. Martinez and P. Martinez, E1
 Paso, Texas, to report at once for duty on positions
 of Laborer at Tucson, Arizona, another seniority dis
 trict, by authority of Agreement between the parties
 dated October 31, 1973 respecting phased closing and
 discontinuance of its icing operations, notwithstanding
 the National Agreement of February 7, 1965, Article III,
 Sections 1 and 2 thereof, provides for specific imple
 menting agreements requiring sixty or ninety days written
 notice to the involved organization?
 OPINION On March 4, 1974, Claimants J. W. Martinez and P. Martinez were
 OF BOARD: protected employees in Seniority District 10, at El Paso, Texas.
 On that date, the Carrier notified Claimants to report for duty
 in Tucson, Arizona--another seniority district where Claimants did not have
 seniority rights. Despite such lack, Claimants were directed to report to
 Tucson, "for a position for which you are qualified in your craft and/or class."
 Consequently, the Organization filed the instant Claim alleging a violation of
 the February 7, 1965 National Agreement.

 In order to place in proper focus the thrust of the instant dispute, it is essential that we quote the relevant sections of the National Agreement, to wit:

          "Article II, Section 2


          An employee shall cease to be a protected employee in the event of his failure to accept employment in his craft offered to him by the carrier in any seniority district or on any seniority roster throughout the carrier's railroad system as provided in implementing agreements made pursuant to Article III hereof, ---."


          "Article III, Section 2


          Except as provided in Section 3 hereof, the carrier shall give at least 60 days' (90 days in cases that will require a change of an employee's residence) written notice to the organization involved of any

                                        AWARD N0. 396

                                        Case No. CL-103-W


                          _ 2 -


          intended change or changes referred to in Section 1 of this Article whenever such intended change or changes are of such a nature as to require an implementing agreement as provided in said Section 1.


In addition, the November 24, 1965 Interpretations to the February 7, 1965 National Agreement, provides as follows, to wit:

          "Article III - Implementing Agreements


          The parties to the Agreement of February 7, 1965, being not in accord as to the meaning and intent of Article III, Section 1, of that Agreement, have agreed on the following compromise interpretation to govern its application:


            1. Implementing agreements will be re

            quired in the following situations:


                (a) Whenever the proposed change involves the transfer of employes from one seniority district or roster to another, as such seniority districts or rosters existed on February 7, 1965."


Thus, the Organization argues that the Carrier violated the National Agreement when, "Claimants were ordered to report for work in Seniority District 4 where they do not have seniority rights." (Underline included in original submission).

 We agree wholeheartedly with the Organization's contention that it would be a violation of the National Agreement; and impermissible to transfer employees to another seniority district where they have not established seniority rights, without an implementing agreement. Our assertion of the foregoing basic principle leads us directly to the fundamental arguments of the parties.

 On October 31 , 1973, the parties executed an Agreement, portions of which are hereinafter quoted, to wit:

          "This implementing agreement, entered into as a result of ICC Order (Docket No. 8720) on discontinuance of icing service, is made by and between the Pacific Fruit Express Company (hereinafter referred to as the Company) and certain of its employes represented by the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter referred to as the Organization).


          It is Agreed:

                                        AWARD N0. 396

                                        Case No. CL-103-W


                          - 3 -


          The Company's remaining ice plants, icing platforms, other icing operations and facilities located at various points on its system will as result of above mentioned ICC Order be subject to phased closing and discontinuance. The fundamental purpose of this agreement is to provide orderly procedures for the accomplishment of such changes in positions and conditions of employment for employes within the coverage of existing agreements between the parties and to set forth benefits applicable to employes who are affected by changes resulting from said closures, curtailments and/or discontinuances of ice plants, icing platforms, icing operations and facilities.


                        Article I


                      Applicability


          The provisions of this implementing agreement shall be applied to employes, subject to the provisions of the Clerks' Agreement effective June 1, 1965, as amended, who are affected by changes brought about by the phaseout of aforesaid icing operations at various points on the Company's system."


                      "Article III


              Compensation Due Protected Employes


          All employes protected under the provisions of the February 7, 1965 Agreement who are affected----shall continue to be governed by and subject to the provisions of the February 7, 1965 Agreement."


In this posture, the Organization alleges that, "(N) or was a change in icing operations involved." Furthermore, that the parties did not enter into an implementing agreement. In addition, we would note that subsequent to the execution of the October 31, 1973 Agreement, as well as the letters to Claimants to report for duty in Tucson, one of the Claimants, J. W. Martinez, opted for severance and was paid $14,001.41.

 Hence, the issue presented to our Board poses the question, whether the October 31, 1973 Agreement, represented an implementing agreement as required by the February 7, 1965 National Agreement. The Carrier's response states as follows:

          "The Agreement itself is replete with Implementing Agreement references as well as February 7, 1965 references."

                                      AWARD N0. 396

                                      Case No. CL-103-W


                          _ 4 _


What disturbs us is the apparent attempt on the part of the Organization to recant, abjure and repudiate the unambiguous language contained in the October 31, 1973 Agreement. It seeks now to have us disregard such words as "implementing agreement" and "subject to the provisions of the February 7, 1965 Agreement." In our view, the October 31, 1973 Agreement, is clearly and unequivocably an implementing agreement within the purview of the February 7, 1965 National Agreement. We consider such effort as an argument in futility.

 Therefore, it is our considered judgment that the instant Claim should be denied.

                        AWARD:


          The answer to the question is in the negative.


Mur sy .Rohman

 Neutral Member u

 Dated: Washington, D. C.
 March 19, 1976