BNSF has presented Question Nos. 2(a) and (b) below and asserts that they are related to BNSF Question No. 1 above and that a Board established pursuant to Section 3, Second, such as this Board, has jurisdiction to hear and answer these questions. However, as a threshold jurisdictional matter, BMWE asserts that a Board established pursuant to Section 3, Second, such as this Board, has no jurisdiction to hear and decide such questions because they fall within the exclusive jurisdiction of the Work Force Stabilization Select Committee. Which party is correct as to the proper jurisdiction for resolving these disputes, BMWE or BNSF?"

A. Pertinent Agreement Provisions,

5. Within each newly consolidated district, district mobile gangs will conform to the following conditions:

A. Each employee assigned to any district mobile gang who does not leave the gang voluntarily for a period of at least six (6) months shall be entitled

to a lump sum payment annually equal to 5% of his/her compensation earned during the calendar year on that gang. Such compensation shall not exceed $1,000 and shall be paid within 30 days of the completion of the employee's service on the gang; for mobile gangs not required to be disbanded each year, payment will be made within 30 days of the completion of each calendar year. If the company disbands the gang in less than six months, the company will be responsible for payment of the production incentive earned as of that date.

B. The Work Force Stabilization (WFS) Program (effective on January 18, 1994 and applied retroactively back to July 29,1991) shall apply to all district mobile gangs, and shall entitle an employee initially assigned to a WFS gang when it starts its work during the production season for the calendar year, six months of WFS work benefits or WFS unemployment benefits, subject to the terms of that Program.

C. The travel allowance provided by Article XIV of 1996 National Agreement will apply to all district mobile gangs.

D. A district mobile gang meeting Arbitrator Sickles' definition of a regional/system gang and working on seniority districts that are under the former Santa Fe -BMWE Schedule will receive per diem payments on a 7-day basis.

Article XII(C) Part C - Work Force Stabilization The Work Force Stabilization (WFS) Program effective on January 18, 1994, and applied retroactively back to July 29, 1991 shall continue in effect for the new agreement, and shall entitle an employee initially assigned to a WFS gang when it starts its work

during the production season for the calendar year, six months of WFS work benefits or WFS unemployment benefits, subject to the terms of the agreement.

Also on August 12, 1999, the parties entered into the District's Consolidation-Related

1. The purpose of this agreement is to specify the other agreements made by the parties in connection with the seniority consolidation bargaining.

Article H of the Related Agreements provides:

Article H. Mobile Crews: Schedules and/or Notices:

1. Region/System Gangs:

There will be no change to the current notice provisions applicable to Region/System Gangs.

2. District Mobile Gangs Meeting the "Sickles" Definition:

District Mobile Gangs meeting the "Sickles" definition will be provided with an informational notice on the bulletin when established. The informational notice will contain the type of gangs, the anticipated work locations, beginning milepost, ending milepost, and start date. It is understood that information provided concerning the anticipated schedule of work for the mobile gangs shall be for information only, shall be subject to change without notice, and shall not constitute a guarantee that the gang will perform the work specified or at the time and place specified. Attachment No. 3 to this Agreement contains a typical example of the form of the notice to be provided under this provision.

3. District Mobile Gangs or Positions Not Meeting the "Sickles" Definition;

District Mobile Gangs or positions) not meeting the "Sickles" definition will be provided with an informational notice. The informational notice will be provided at the time of the bulletin. The notice will describe work locations where the mobile positions) is

expected to work and the duration of the project if possible. It is understood that information provided concerning the anticipated schedule of work shall be for information only, shall be subject to change without notice, and shall not constitute a guarantee that the gang or positions) will perform the work specified or at the time and place specified.

This Side Letter will refer to the various seniority redistricting Agreements dated June 10, 1999. The parties agree that all District Mobile Gang positions will be rebulletined as part of the Implementation of these Agreements and Awards on each new expanded district. It is understood that during the remainder of the 1999 work season there will not be adequate time left in the year for

Agreements, relevant Awards and the Workforce Stabilization

Agreement. For this reason, the provisions of the Workforce

Stabilization Agreement are suspended for the remainder of the 1999

calendar year. The parties further agree that upon rebulletin of the

District Mobile Gang positions, the bonus payments that may be due

an eligible District Mobile Gang employee will be pro-rated for the

Remainder of 1999.

D. Any information contained on the bulletin concerning the anticipated schedule of work for the gang shall be for information only, shall be subject to change without notice, and shall not constitute a guarantee that the gang will perform the work specified or at the time and place specified.

>v. NOTICE

A. Pursuant to Article XIII, each carrier is required to provide at least ninety (90) days written notice of its intention to establish regional or system-wide production gangs. To encourage and facilitate timely and full discussion of relevant issues, each carrier shall provide notice to the appropriate organization representative of its tentative plans to establish WFS gangs no later than 75 days preceding the beginning of the calendar year for which the programmed work is scheduled.

- B. This notice requirement will be effective for the 1994 work season and beyond but will not be applicable on a carrier on which an arbitration award or voluntary agreement has already set forth notice requirements. However, a carrier not required to provide notice pursuant to Article XITI will, prior to the beginning of each production season beginning with the 1994 work season, provide notice pursuant to Article XIV of the number and staffing of the regional or system-wide production gangs to be established for such season.

The parties concur that, on this property, the Article IV notice has been reduced to 30 days

Article VII of the WFS Program provides:

' VIL FUNCTION OF SELECT COMMITTEE

A. In accordance with its charter, the Select Committee shall continue in existence to help ensure that this program is applied and utilized effectively and evolves to achieve its full potential. Its specific duties shall include:

L. Monitoring WFS Proeram. The Select Committee shall have the authority to revise and amend the current program in order that it achieve

intended results. In light of this, the Select Committee has refrained from addressing many hypothetical issues, choosing rather to reserve its right to make revisions and amendments upon observing actual experience under the program.

2. Dispute Resolution. The Select Committee

shall also function as a dispute resolution forum and

the Select Committee shall be the forum for resolving

disputes arising under the relevant Articles of the

February 6, 1992Imposed Agreement except where it

does not have jurisdiction or declines to exercise

jurisdiction and designates the appropriate forum.

When either party requests the Select Committee to

adjudicate a claim or dispute, the Select Committee

shall make a threshold determination over whether the

Select Committee properly has jurisdiction over the

^ particular dispute or claim.

If the Select Committee asserts jurisdiction over a dispute or

claim, it will have full authority to fashion any appropriate remedy..

In addition, the Select Committee will exercise its discretion,

consistent with due process, as to the appropriate procedure for

resolving a dispute or claim.

If the Select Committee determines the dispute or claim is beyond its jurisdiction or declines jurisdiction and designates the appropriate forum, the time limits involved in any associated claims and grievances will be held in abeyance until thirty (30) days after the parties on the property have received the claim or dispute from the Select Committee.

In the event a dispute is returned to the local property, the claim shall be submitted to the highest carrier official assigned to handle such disputes and thereafter progressed in accordance with applicable local rules.

B. Notwithstanding the provisions of Part A of this Article, claims and disputes over the scope and meaning of "emergency" as used in Article V and over the scope and meaning of "economic adversity" as used in Article V are within the jurisdiction of the Select Committee.

C. Notwithstanding the provisions of Part A of this Article, a claim involving WFS unemployment benefits, as set forth in Article fl, shall be filed directly with the Carrier's highest designated officer designated to receive such claims. If such claim is denied in whole or in part by the designated Carrier Officer, such Officer and the General Chairman shall promptly confer on the matter. The General Chairman may submit such claim to the Select Committee which shall assert jurisdiction over such claim.

B. Consolidation of Seniority Districts

On April 7, 1998, the Carrier notified the Organization of its intent to consolidate the 47 existing seniority districts into nine seniority districts. One of the main goals of the Carrier's seniority districts consolidation proposal was to allow DMGs, which are constrained to a single seniority district., to work over larger territories. Without consolidating seniority districts, the Carrier would be relegated to using Regional-System Gangs (RSG), which may cross seniority district boundaries, to cover large territories. The Organization rejected the Carrier's proposal. Since they were unable to reach a mutual understanding, the parties progressed the seniority consolidation issue to arbitration.

In arbitration, the Carrier proffered evidence that operational necessity warranted the consolidation of seniority districts. The Organization brought forward evidence that the employees would incurunduly harsh working conditions if districts were consolidated. The Organization also alleged that ft-Carrier's seniority district consolidation proposal was just a gambit to circumvent the WFS ProgE·ant. Put differently, with just nine mammoth seniority districts, DMGs would be equivalent to RSGs, but members of DMGs would not have the benefits and procedural safeguards of the WFS Program.

To begin with, assuming the existence of combined districts, a district mobile gang would then in many respects resemble the PEB 219 regional gang. Indeed, if a district mobile gang were to consist of 20 or more employees who were "heavily mechanized and mobile continuously performing specific prografnmed major repair and replacement work.. .", it would be indistinguishable from a regional gang. It should, in these circumstances, be entitled to all the benefits a regional gang enjoys.

Even if, assuming combined districts, a district mobile gang does not meet Arbitrator Sickles' definition of a regional gang, it would still be sufficiently similar to a regional gang to warrant many of the same benefits.; This district mobile gang would be responsible for an area very much like the area covered by a regional gang and would ordinarily no doubt be specialized and mechanized to some degree. An informational notice should be posted with respect to this gang's work fixations so that employees would know in advance what commitment they are making in bidding for a particular gang.

Moreover, such district mobile gangs should be entitled to a production incentive bonus if the employee remains on the gang for six months. It the gang works less than six months, the bonus would be prorated. The size of the bonus and the precise circumstances under which the gang would qualify for the bonus are matters for the parties to negotiate. Should they be unable to agree, they may return to the arbitrator for a final ruling on this matter. In addition, the members of such mobile gangs should receive the travel allowance provided by Article XIV of the CBA. Finally, those members who qualify for the production incentive bonus should also be covered by the "work . . . stabilization" guarantee in effect for regional gangs, namely, the six-month work guarantee or, in the event of a layoff, a supplemental unemployment benefit.

C. Negotiating History

After the Carrier acquired the license to establish nine large seniority districts in lieu of the existing 47 seniority districts, the Carrier and the Organization commenced negotiations to implement the consolidation of seniority districts.' The negotiations culminated with the parties entering into the August 12, 1999 Seniority Districts Consolidation Agreement and the August 12, 1999 Related Agreements (with ancillary Side Letters).

The negotiators differ not only on how they interpret Section 5(B) of the Seniority Districts Consolidation Agreement but also on discussions across the bargaining table concerning advance notice for DMGs.

In his declaration, Ernest L. Torske, an Organization Vice President, attested that the parties, via Section 5(B), agreed to apply the entire WFS Program to all DMGs. Vice President Torske related that inasmuch as DMGs were added to the WFS Program, the negotiators did not discuss specific sections of the WFS Program. Joel Myron, the Organization's Director of Strategic

' The Carrier submits that it could have unilaterally created the nine seniority districts. The Organization submits that the Carrier could not have accomplished seniority consolidation without reaching implementing agreements with the Organization.

Dennis J. Merrill, the Carrier's General Director of Labor Relations - Support Crafts, attested that he informed the Organization's negotiating team that the Carrier was disenchanted with the WF5 advance notice provisions because they were onerous and precipitated constant disputes between the Organization and the Carrier. Merrill acknowledged that the Mittenthal Award could be construed to require WFS Article IV Notice for DMGs satisfying the Sickles' definition of a RSG but, in his view, the Mittenthal Award only required informational notice for DMGs not meeting the Sickles' definition of a RSG. Therefore, Merrill proposed, and he believes that the Organization negotiators accepted his proposal, that the Carrier could establish DMGs by tendering informational notice only as described in Articles H(2) and H(3) of the Related Agreements. Merrill went on to state that the parties did not discuss any type of notice besides the informational notice. Merrill asserted that the Carrier agreed to provide the Organization's members with many benefits in exchange for the informational notice. In sum, Merrill implies that, to avoid the imposition of WFS Article IV Notice for DMGs meeting the Sickles' definition, the Carrier agreed to give the Organization certain benefits so that informational notice only would apply regardless of whether the DMGs satisfied or did not satisfy the Sickles' definition. The Carrier's General Director - Labor Relations, Wendell Bell, concurred with Merrill that the Carrier wanted relaxation of notice requirements. Bell explained that, from the Carrier's perspective, Section S of the Seniority Districts Consolidation Agreement addressed pay and benefit improvements consistent with those economic

D. Events Subsequent to September 11. 1999

Between September l I, 1999 and the end of the year, the Carrier established dozens, if not hundreds, of DMGs. In each instance, the Carrier provided informational notice only. The Organization frequently objected to the adequacy of the informational notices yet, the Organization did not allege that the Carrier should have also tendered WFS Article IV Notice prior to creating these DMGs.

On October29, 1999, the Cagier submitted the advance notice, pursuant to WFS Article IV, for RSGs scheduled to operate during the 2000 calendar year. According to Merrill, an Organization representative never alleged that the Carrier failed to provide a similar advance notice for the DMGs. Merrill further related that between January and March, 2000, the Carrier established 1,400 new positions on various DMGs predicated solely on informational notice. The Organization did not challenge the absence of WFS Article IV Notice.

A. TheOrganization's Position -

1n addition to the informational notice requirement set forth in Article H of the Related Agreements, the Carrier must give WFS Article IV Notice to the Organization's representatives pursuant to the clear, unambiguous and unmistakable language of Section 5(B) of the Seniority Districts Consolidation Agreement. The WFS Article IV Notice and the informational notices are different types of notices aimed at different audiences. The WFS Article IV Notice apprizes the Organization's representatives of the impending program for a DMG so that the parties have an opportunity to discuss changes to minimize the adverse effects on the employees or to increase Carrier efficiencies. The informational notice goes to employees so that they can make intelligent decisions about when and where they want to work. Thus, the two types of notice are complementary.

The plain language of Section 5(B) states that the WFS Program applies to all DMGs. The introductory clause of Section 5(B) contains the mandatory words "shall apply" leaving no uncertainty that the WFS Program governs "all" DMGs (making no differentiation between DMGs meeting or not meeting the Sickles' definition). The negotiators could not have adopted clearer or plainer language. In addition, the closing clause states that employees assigned to a DMG will enjoy

° The Organization's letter confirmed a March 17, 2000 telephone conference can between Organization representatives and Carrier officers.

The negotiators imported the language in Article X1I, Part C of the September 26, 1996 National Agreement into Section 5(B) of the Seniority Districts Consolidation Agreement. This reinforces the negotiators' intent to apply the complete WFS Program to DMGs. Moreover, the WFS Program is a comprehensive program not susceptible to parsing out various components. It would be illogical and senseless for the negotiators to pick and choose portions of the WFS Program. Rather, logic dictates that the negotiators purposefully adopted the entire WFS Program for the benefit of DMGs.

Like Section 5(B) of the Seniority Districts Consolidation Agreements, Article H of the Related Agreements is clear and unambiguous. There is not any language in Article H demonstrating that it supersedes Section 5(B).

The Carrier conjures up ambiguities in Section 5(B) where none exist. In a futile attempt to find some ambiguity, the Carrier marches a parade of horrible ramifications before this Board that will allegedly occur if this Board decides that the Carrier must tender WFS Article IV Notice before establishing DMGs. Initially, the Organization notes that the parade of horribles is an equitable argument not relevant to construing contracts. The Carrier is attempting to bootstrap extrinsic evidence into the record in an effort to change clear contract language. Equity does not relieve the

In the end, the Carrier's alleged ambiguities cannot overcome or contradict the "shall apply" language in Section 5(B) of the Seniority Districts Consolidation Agreement.

Inasmuch as the language in Section 5(B) is plain and unambiguous, this Board may not consider extrinsic evidence.' Nevertheless, both the past practice and the negotiating history buttresses the Organization's interpretation of Section S(B).

The Carrier misrepresents the bargaining history. The parties bargained about many subjects following the issuance of the Mittenthal Award. The bargaining was far more complex than the Carrier's simplistic quid pro quo representation. Indeed, the Carrier was unable to implement seniority consolidation without first negotiating with the Organization. Had the Carrier unilaterally implemented the Mitrenthal Award, it would have encountered formidable obstacles if not utter chaos.

Throughout negotiations, the Carrier negotiators never suggested that the WFS Article IV Notice would trot apply. Since the parties agreed to apply the entire WFS Program to DMGs, it was unnecessary for them to discuss any individual aspect of the WFS Program. Therefore, the Organization's negotiators did not walk the Carrier officers through each and every Article of W FS. The Carrier negotiators acknowledged in their statements that the negotiators did not dissect each

This Board cannot use bargaining history to vary or alter the clear and unambiguous contract language.

In the June 10, 1999 Side Letter, the parties suspended the application of the WFS Program for the remainder of 1999. As a result, the Organization could not possibly challenge the Carrier's failure to provide WFS Article IV Notice for DMGs established in 1999. Via the March 20, 2000 letter, the Organization promptly objected to the absence of the WFS Article IV Notices for DMGs established in 2000. The Seniority Districts Consolidation Agreement and the Related Agreements were significant new undertakings and the Carrier insisted on hastily implementing the consolidation. The Organization had to address many problems and thus, it raised the notice issue as soon as the dust settled. Had the Carrier implemented the contracts with prudence and deliberation, the issue may have been joined before the Carrier established any DMGs in the 2000 calendar year.

With regard to the Carrier's Question Nos. 2(a) and 2(b), this Board lacks jurisdiction to answer them. Article VB(A)(2) of the WFS Program provides that the Select Committee ". . . shall be the forum for resolving disputes . . :' arising under the WFS Program. Moreover, the Select Committee is charged with monitoring the WFS Program to insure that the program achieves its intended and full potential.

Last, thcCarrier has not posed its questions within the context of an actual controversy. The Select Committee may not be amenable to adjudicating a hypothetical dispute. In any event, the Select Committee has the jurisdiction to make the threshold determination if it wants to answer the Carrier's questions.

B. The Carrier's Position

The Organization bears the burden of proving that the Carrier is required to tender WFS

Section 5(B) of the Seniority Districts Consolidation Agreement cannot be considered in a

vacuum. Rather, this Board must look at other terms of the Seniority Districts Consolidation Agreement, the provisions in the Related Agreements as well as the Mittenthal Award to glean the intent of the parties.

Mittenthal ruled that the Carrier need only give informational notice before establishing

Next, the detailed description of the informational notices in Articles H(2) and H(3) of the

Nevertheless, the Organization argues that the Carrier must give two notices for each and every DMG: WFS Article IV Notice and informational notice under Article H. These two notice provisions are conflicting and incongruous. First, if two notices were required, one would expect each notice provision to refer to the other. Article H, with the topical heading, "Notice," clearly pertains to notice but the provision alludes to neither Article IV of the WFS Program nor Section 5(B). Second, the informational notices for both Sickles and non-Sickles DMGs are not final. The provisions of Articles H(2) and H(3) permit changes in DMG work without further notice and, indeed, the notices do not constitute a guarantee that the specified work will be performed at the specified place. The WFS Article IV Notice is far more restrictive than informational notice. While some modifications are permissible subsequent to serving an WFS Article IV Notice, the limitations on such notice are inconsistent with the Carrier's ability to make liberal changes after the informational notice is served. Thus, the notices are mutually exclusive. The Article H informational notice becomes meaningless if the Carrier is bound to serve notice in conformity with Article IV of the WFS Program.

Although Section 5(B) of the Seniority Districts Consolidation Agreement is vague and poorly drafted~the provision was intended to enumerate the economic benefits accruing to members of DMGs. Section 5(B) specifically speaks to the work benefits and unemployment benefits in the WFS Program. But Section 5(B) stops there. It goes no further. In particular, the language of Section 5(B) does not end after the introductory clause. If it did, the Organization's interpretation might have some merit. If the Organization's interpretation was reasonable, the drafters of Section

The Organization's interpretation is neither practical norreasonable given the disruption that would ensue throughout the Carrier's system if WFS Article IV Notice is applicable to all DMGs. Article IV W FS Notice would severely hamstring the Carrier's operations so that the Carrier would forfeit the efficiencies gained by consolidating the seniority districts. The Organization Is improvidently attempting to undo the Mittenthal Award which granted to the Carrier the right to consolidate the seniority districts. The Article IV Notice would thwart the Carrier from achieving the operational necessities which, as Mittenthal found, justified consolidating seniority districts. The stakes are high. Application of the WFS Article IV Notice would rob the Carrier of the needed productivity gains mandated by the Mittenthal Award. The Organization is estopped from relitigating issues resolved by the Mittenthal Award.

The negotiating history demonstrates that the Carrier's top priority was to achieve informational notice for all DMGs. The Carrier purposely and successfully made certain that, with regard to advance notice, there would be little distinction between DMGs that satisfied the Sickles' definition and DMGs that did not satisfy the Sickles' definition. The Carrier wanted to retain the flexibility of operating DMGs afforded by the consolidation of seniority districts. In exchange for a relaxation of the WFS Article IV Notice requirement arguably imposed by the Mittenthal Award for DMGs satisfying the Sickles' definition, the Organization obtained many generous benefits.

As the statements of the Carrier negotiators indicate, the parties vigorously and extensively bargained over notice. Those same statements disclose that the parties never discussed applying the WFS Article IV Notice to DMGs. In sum, Article H of the Related Agreements went beyond the Mittenthal Award to provide more economic benefits for the Organization's members and, in return, the Carrier attained informational notice only for all DMGs. Anything more than informational notice was a deal breaker as far as the Carrier was concerned. The Carrier negotiators would never have agreed to Section 5(B) if they had any inkling that Section 5(B) incorporated the WFS Article IV Notice requirement.

Concomitantly, the Organization's plain language argument is refuted by its words and deeds. The Organization not only would have objected, at least in early January 2000, to the lack of WFS Article IV Notices but the Organization also would have conspicuously announced to its members the negotiating coup that it had achieved if Section 5(B) means what the Organization claims it means. In the internal newsletter that the Organization sent to its members explaining the major aspects of the Seniority Districts Consolidation Agreement and the Related Agreements, the Organization does not mention WFS Article IV Notice. If the Organization had obtained WFS Article IV Notice for all DMGs at the bargaining table, surely the Organization would have bragged about its magnificent achievement to its members.

The Mittenthal Award was the catalyst for the Seniority Districts Consolidation Agreement and the Related Agreements. Prior to the March 11, 1999 Mittenthal Award, the parties were uncertain whether the Carrier could consolidate seniority districts, and if so, the location of the new district boundaries. Mittenthal realized the enormity of fashioning nine seniority districts on a massive railroad system given that the Carrier and us predecessors had for decades observed the principle ofsettiorityaccordingtosmall,localdistricts. While theMittenthalAwardgavetheCarrier the green light (o consolidate 47 districts into nine districts, Arbitrator Mittenthal was also concerned that such a significant and dramatic change in seniority would adversely impact the employment conditions (as well as the personal lives) of maintenance of way employees. As a result, the Mittenthal Award laid a foundation of benefits designed to soften the blow on employees caused by

Thus, the starting point for interpreting the Seniority Districts Consolidation Agreement and the Related Agreements is to fully understand the MittenthaL Award especially the extent to which the decision delineated the application of the WFS Program to the DMGs.'

A close perusal of the Mittenthal Award reveals that the arbitrator did not view the Carrier's seniority district consolidation proposal as a pretext for the Carrier to circumvent the W FS Program. The Mittenrhal Award fell far short of holding that, after the consolidation of seniority districts, all DMGs would be equivalent to RSGs. Mittenthal never suggested that DMGs operating within large seniority districts would precipitate the extinction of RSGs. Instead, Mittenthal observed that a DMG satisfying the Sickles' definition of a RSG would be "indistinguishable" from a RSG. The Mittenthal Award set apart those DMGs not satisfying the Sickles' definition of a RSG. Mittenthal wrote that non-Sickles' DMGs are "similar" to, but not identical to, RSGs. Thus, the Mittenthal Award drew a distinction between DMGs meeting the Sickles' definition of a RSG and DMGs not meeting the Sickles' definition of a RSG.

Mittenthal tailored the benefits to match the type of DMG. Mittenthal found that DMGs meeting the Sickles' definition ". . . are entitled to all the benefits a regional gang enjoys:' Next, Mittenthal concluded that DMGs not meeting the S ickles' definition ". . . warrant many of the same benefits. . :" afforded to RSGs. Mittenthal did not use the adjective "all" before "benefits" for the

For either parties' interpretation of Section 5(B) of the Seniority Districts Consolidation' Agreement to be accurate, the negotiators had to substantially deviate from the Mittenthal Award. If the Organization is correctly interpreting Section 5(B) and Article H of the Related Agreements, the negotiators had to expand informational notice to DMGs meeting the Sickles' definition and expand the WFS Article IV Notice to DMGs not meeting the Sickles' definition. If the Carrier's interpretation of Section 5(B) and Article His correct, the negotiators jettisoned the WFS Article IV Notice for DMGs satisfying the Sickles' definition and extended the informational notice requirement to those DMGs.

Thus, it is not surprising that both Section 5(B) of the Seniority Districts Consolidation Agreement and Articles H(2) and H(3) of the Related Agreements do not specifically track the Mittersthal Award. However, to reiterate, the theme derived from the Mittenthal Award raises a reasonable inference that the WFS Program, in its entirety, would not apply to all DMGs. This

The parties lifted most of the language found in Section 5(B) from Article XII, Part C of the September 26, 1996 National Agreement. The wording is almost verbatim. However, the origin of the Section 5(B) language is of little help in construing the provision. Article XII, Part C of the National Agreement addressed RSGs, that is, gangs covered by the WFS Program. The parties apparently adopted the Article XII, Part C language governing RSGs in an attempt to express the benefits applicable to DMGs. Copying most of Article XU, Part C into Section S(B) was an unartful way of expressing the degree to which the WFS Program would apply to DMGs. In sum, the language lifted from the 1996 National Agreement did not fit neatly into the Seniority Districts Consolidation Agreement.

The language in Section 5(B) raises a sufficient amount of doubt concerning the plain meaning of the words therein. For several reasons, this Board concludes that Section 5(B) cannot be accorded any particular meaning based solely on the literal language of the provision.

First, the Board is perplexed by the reference to "a WFS gang" in Section 5(B) when the parties are referring to DMGs even though the Board realizes that the parties lifted the phrase from the 1996 National Agreement. A WFS gang was historically covered by the WFS Program, that is, a RSG. If the parties wanted to be clear in Section 5(B), they would have called the gang a DMG, which would be consistent with the earlier reference to DMGs. The reference to a WFS gang makes one wonder what the negotiators were trying to accomplish.

Second, if the drafters of Section 5(B) intended to apply the entire WFS Program to all DMGs, the provision would have ended after the phrase "shall apply to district mobile gangs." The

Third, like subsection (B), the other subsections of Section 5 do not mention notice. Rather, the terms dwell extensively on economic enhancements consistent with the work and unemployment benefits specifically written into Section 5(B). Indeed, this recitation of economic benefits roughly conforms to Mittenthal's list of benefits for DMGs not meeting the Sickles' definition. Thus, on its face, Section 5 addresses substantive economic matters but not processes such as notice. The structure of Section 5, including subsection (B), indicates that the provision is primarily intended to cover economic matters.

Thus, for the above related reasons, the plain meaning of Section S(B) is not as obvious as

This Board may not construe Section 5(B) in a vacuum. The parties adopted Section 5(B) and the Seniority Districts Consolidation Agreement in conjunction with the Related Agreements. The preamble to the Related Agreements announces that the two contracts must be read in tandem. The Seniority Districts Consolidation Agreement is incomplete without considering the terms and conditions of the Related Agreements.

Reading Section 5 of the Seniority Districts Consolidation Agreement and Article H of the Related Agreements together reveals that the Carrier's interpretation of the two provisions is not only reasonable but also supported by the pertinent language in those provisions.

If, as the Organization argues, all DMGs are indistinguishable from RSGs in terms of the application of the WFS Program, the parties would not have needed to write Article H(L) of the

Next, Articles H(2) and H(3) separate DMGs according to the Sickles' definition just as Mittenthal did. Yet, unlike Mittenthal, the parties wrote, in Article H(2), an informational notice requirement for DMGs meeting the Sickles' definition. This variance from the Mittenthal Award directly conflicts with the Organization's interpretation of Section 5(B). WFS Article IV Notice is incompatible with informational notice. The two types of notices are not harmonious. Article_H(2) provides no guarantee that the gang will perform the work specified or at the time and place specified. The Carrier can make substantial changes even afterserving the informational notice. The degree of subsequent changes after au Article IV Notice is served are constrained. Thus, the notice in Articles H(2) and H(3) directly conflict with the more formal and more rigid notice required by Article IV of the WFS Program. The two types of notices are not reconcilable.

Therefore, if Section 5(B) means that the Carrier must serve WFS Article IV Notice in addition to informational notices, the Carrier would lose much of the flexibility given to the Carrier by Articles H(2) andH(3). This would mean that Article H(2) would become meaningless (albeit, the Organization is correct that the Article H notices would give some information to its members). Nevertheless, the language concerning the absence of any guarantee would be rendered superfluous. The parties do not write their agreements only for provisions to be rendered meaningless. The only

In addition, Articles H(2) and H(3) contain specific language that controls over the general Section 5(B) language unartfully lifted from the 1996 National Agreement. Section S(B) does not even contain the word "notice." Articles H(2) and H(3) describe the form and substance of the notice in great detail. The description does not give even a hint that the informational notice follows an earlier served notice. Surely, the negotiators would have made some allusion to WFS Article IV Notice if they had agreed that that type of notice would precede the informational notice. When the terms of the Seniority Districts Consolidation Agreement and the Related Agreements are read as a whole, the specific language in Articles H(2) and H(3) prevail over the general language in Section 5(B).

This Board concludes that the WFS Article IV Notice does not apply to DMGs.

In reaching our decision, this Board did not address or consider any extrinsic evidence including the negotiating history or any alleged past practice.

Turning to the issue of the Board's jurisdiction over Carrier's Question Nos. 2(a) and 2(b), we hold that the Select Committee has primary jurisdiction over those issues. In Section S(B) of the Seniority Districts Consolidation Agreement, the parties applied the work and unemployment benefits of the WFS Program to all DMGs. How the application of those benefits may or may not influence the establishment of DMGs during the last half of the year or fix a minimum duration for the gangs established at any time, is an issue which the Select Committee should have the threshold opportunity to address. The Select Committee is charged with monitoring the WFS Program to insure that it accomplishes its intended result in a dynamic work environment. Even though the

If this Board were to decide Question Nos. 2(a) and 2(b), this Board could not only be infringing on the jurisdiction of the Select Committee to monitor WFS but we also might change the terms and conditions of the WFS Program. Whether the Carrier's questions present a purely local dispute or a dispute involving an interpretation of the WFS Program should initially be made by the Select Committee.

In conclusion, the Select Committee has primary jurisdiction over Question Nos. 2(a) and 2(b).

It is possible that the Select Committee may decide that the questions posed by the Carrier do not rest on interpreting the WFS Program. Should the Select Committee decline jurisdiction over Carrier Question Nos. 2(a) and 2(b), the last two paragraphs of Article V)I(A) of the WFS Program provide for the further handling of the dispute on the property. Therefore, while the Select Committee has primary jurisdiction (akin to a right of first refusal) over the questions, the Select Committee may not have exclusive jurisdiction.

AWARD AND ORDER