Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26930
THIRD DIVISION Docket No. TD-25875
88-3-84-3-227
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the American Train Dispatchers Association that:
(a) The Consolidated Rail Corporation ('Carrier' or 'ConRail') violated Rule 1-Scope of its Trai
conditions Agreement, when, effective at or about 6:26 p.m. CST
February 17, 1983, it made changes in operations which
(1) removed and transferred control and operation of that
portion of the Traffic Control System ('TCS') governing
Control Point
('CPI)
192 from its Train Dispatchers in
the Jackson, Mich. office to its Block Operator employyees at Michigan City Drawbridge, and
(2) effectively transferred from Train Dispatchers in its
Jackson, Mich. office, to Block Operators at Michigan
City Drawbridge,
(i) primary responsibility for the movement of westward
trains between new CP 190 at Mile Post 190.5 and
CP 211, and eastward trains between CP 192 and CP 180,
and
(11) supervision of the movement and handling of such
trains and pertinent employees associated therewith.
(b) Because of said violations, the Carrier shall now compensate
(1) the senior extra Train Dispatcher respectively available
on each shift in the Jackson, Mich. office, one (1)
day's pay at the rate applicable to Trick Train Dispatchers beginning at 6:26 pm CST February 17, 19
continuing on each subsequent shift and date thereafter
until the duties referred to in paragraphs (a)(1) and
(a)(2)(i) above are returned to Trick Train Dispatchers
in the Michigan seniority district and
Form 1 Award No. 26930
Page 2 Docket No. TD-25875
88-3-84-3-227
(2) the next senior extra Train Dispatcher respectively
available on each shift in the Jackson, Mich. office,
one (1) day's pay at the rate applicable to Assistant
Chief Dispatchers effective 6:26p.m. CST February 17,
1983 and continuing on each subsequent shift and date
thereafter until the duties referred to in paragraph
(a)(2)(11) above are returned to Chief and Assistant
Chief Dispatchers in the Michigan seniority district.
(c) In the event no qualified extra Train Dispatcher(s) are available for any of the respective
(b)(1) or (b)(2) above, the claim is made on behalf of the
senior qualified regularly assigned Train Dispatcher available
for such shift or shifts, at the appropriate rate.
(d) In the event no qualified regularly assigned Train Dispatcher
is available under the conditions set forth in paragraph (c)
above, the claim is made on behalf of the senior qualified Train
Dispatcher who is off duty during such shift or shifts.
(e) Eligible individual Claimants entitled to the compensation
claimed herein include C. W. Ernst, P. M. Leahy, D. B. Campbell,
R. W. Linna, C. 0. Davis, N. C. Lantz, R. M. Latva, G. E.
Ferguson, T. D. Staelens, C. E. Austin, C. Humphreys and J. W.
Wooster, are readily ascertainable on a continuing basis from
the Carrier's records, and shall be determined by a joint check
thereof in order to avoid the necessity of presenting a multiplicity of daily claims."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employees involved in
this dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
On April 1, 1976, Amtrak purchased certain trackage between Kalamazoo, Michigan, and Porter, Ind
maintained the physical facilities and had Conrail employes operate its
trains, handle the dispatching duties, and man the Michigan City Drawbridge
and Interlocking Plant. Prior to February, 1981, Conrail employes, represented by the Dispatchers' O
Form 1 Award No. 26930
Page 3 Docket No. TD-25875
88-3-84-3-227
Jackson, Michigan, dispatching office which controlled interlocking functions
at CP-192, CP-211, and CP-213. Conrail Block Operators, represented by the
Brotherhood of Railway and Airline Clerks located at Michigan City, operated a
TCS machine which manipulated other control points and the Drawbridge. As a
part of Amtrak's Line rehabilitation program, the physical operation of TCS
levers for CP-192, CP-211, and CP-213 was moved from the machine at Jackson to
the machine at Michigan City. Dispatchers no longer physically manipulated
the controls for the three control points, but they did continue to direct
Block Operators in these duties.
The first phase of the move from Jackson to Michigan City occurred
in February, 1981. At that time, the Organization progressed a Claim contending that its Agreement w
control levers for CP-211 and CP-213 was transferred to Block Operators at
Michigan City. This Claim was progressed to this Board and while pending
here, the Organization requested that it be withdrawn. This request was
honored in our Award 24784. The next event in the move occurred in February,
1983. At this time, the TCS machine operation of CP-192 was transferred from
Jackson to Michigan City. This change resulted in the Claim which is now
before us.
The Organization contends that a specific provision of its Scope
Rule was violated when TCS machine work was transferred from Jackson to
Michigan City. The Rule relied upon, 1(d), provides:
"It is agreed that any work specified herein
which is being performed on the property of any
former component railroad by other than employees
covered by this Agreement may continue to be
performed by such other Conrail employees at the
locations at which such work was performed by
history and past practice or agreement on the
effective date of this Agreement; and it is
agreed that work not included within the Scope
which is being performed on the property of any
former component railroad by employees covered by
this Agreement will not be removed from such
employees at the locations at which such work was
performed by history and past practice or agreement on the effective date of this Agreement."
It is contended the last section is a special Rule that insures that
work not exclusively considered Dispatchers' work will continue to be work
subject to the Agreement. It is argued the work that was transferred from
Jackson Dispatchers to Michigan City Block operators is specifically work
contemplated by this Rule.
Form I Award
No.
26930
Page 4 Docket
No.
TD-25875
88-3-84-3-227
The Carrier responds with a number of defenses. First, it argues
the issue in this Docket is the same as that involved in Award 24784. Thus,
the matter has been decided, and the Organization cannot now relitigate the
issue. Secondly, the Carrier contends it does not control Amtrak and has no
say in where that Corporation desires to perform its interlocking operations
on Lines it owns. Thirdly, the Carrier contends that BRAC is a necessary
Third Party to the dispute. Also, it contends the Agreement does not require
that it assign Dispatchers to perform the disputed work.
BRAC filed a Third Party Submission in this Docket and argued that
it has the exclusive right to perform TCS machine work at Michigan City.
We will deal with the matter of Award 24784 first. Both parties
have cited a number of decisions that each argue support on the one hand a
contention that the Claim is barred or on the other that it is not. Examination of these decisions,
point with the facts before us. It seems that not one of the Awards brought
to our attention deal with a grievance that was dismissed by the Board at the
ex parte request of the Organization.
In Award 24784, the Organization unilaterally requested that the
Claim concerning CP-211 and CP-213 be withdrawn without prejudice. This
request was promptly granted by the Board. We are in full accord with the
concept and decisions holding that Awards of the Board are final and binding
and that the doctrine of res judicata applies to litigated matters, but we
cannot conclude these considerations prevent our adjudication of the Claim
involving CP-192 on the basis that the Union withdrew the Claim concerning
CP-211 and CP-213. The case that was withdrawn was never, in any fashion,
adjudicated by the Board. While it may obviously be the subject of a final
and binding dismissal Award, it does not prevent consideration of a similar
claim simply because no adjudication of the issue occurred. This Claim will
not be dismissed, as requested by the Carrier, on the basis that Award 24784
settled the matter.
In looking at the merits of the case, we find the Organization is
claiming that the work connected with operating the TCS machine for CP-192
must be performed by employees of the Dispatchers Craft. The Dispatchers
contend this work is specifically reserved to them by the second part of Rule
1(d) quoted above. The Dispatchers do not contend that all work of this type
must be done by members of its Craft, only that work that was performed by
Dispatchers at the time the Agreement was made effective is theirs to perform.
The Third Party Clerks, which incidentally have a clause in its Agreement
identical to Dispatchers' Rule 1(d), contend the work connected with TCS
machine operation for CP-192 is now Block Operators' work and reserved to
members of its Craft by Agreement provision.
Form 1 Award No. 26930
Page 5 Docket No. TD-25875
88-3-84-3-227
Examination of Rule 1(d) indicates that certain "grandfather" considerations are provided with r
railroad." The Rule was adopted on September 1, 1979. The Line of road
involved in this Claim was acquired by Amtrak almost three and one-half years
earlier, on April 1, 1976. Amtrak, also, is not nor ever has been a component
railroad part of Conrail. It acquired the Line between Kalamazoo and Porter
at the same time that Conrail was created by acquiring properties of several
bankrupt Carriers pursuant to the Regional Rail Reorganization Act of 1973.
The Organization has candidly indicated that work of throwing TCS
machine switches is not exclusively Dispatchers' work. It does seek to have
the work involved in this dispute retained by Dispatchers on the basis that at
the time its Agreement was signed, it was performed on the property of a component railroad of Conra
it would be necessary to place Amtrak in the status of a component railroad,
as that term is used in Rule l(d).
This would not be factual. Amtrak is not a component railroad of
Conrail. It is a Corporation that has contracted with Conrail for certain
services and personnel on trackage operations it acquired at the same time
that Conrail was created.
It is our view the Organization has not acquired a license, by the
language of Rule 1(d), to freeze Amtrak TCS work in the Jackson dispatching
office. Rule 1(d) by its very language is designed to deal with work distribution between competing
In one instance, it permits dispatching work that is covered by the Agreement
to be performed by employes not covered by the Agreement. In the other, it
retains the performance of work not covered by the Agreement to Dispatchers.
In both instances, though, the work that is dealt with is that of component
railroads. The organization would have us apply the Rule to Amtrak work.
This we cannot do as the Rule does not mention Amtrak and, by its very specificity, does not preserv
Accordingly, having found that Rule 1(d) is inappropriate support
for the Claim, it must fail for lack of Rule support.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
4;Z
~0~ ~ -
Nancy J er -Executive Secretary
Dated at Chicago, Illinois, this 30th day of March 1988.
LABOR MEMBER'S DISSENT
to
Third Division Award 26930 - Docket TD-25875
(Referee McAllister)
The territory involved in this dispute was formerly owned by the
Michigan Central Railroad - a "former component" of both Penn Central and
Consolidated Rail Corporation. Amtrak purchased the territory on .April
1, 1976, but contracted with ConRail for the latter to continue to perform
the associated train dispatching functions.
The Award recognizes:
"Examination of Rule 1(d) indicates that certain 'grandfather' considerations are provided with
(p. 5)
The reference to "work . . . being performed on the property of anyformer component railroad" in
Amtrak's purchase of the territory on April 1, 1976 did not change
the fact that it was "the property of [a] former component railroad".
The Award does not draw its essence from the Agreement, is without
basis in reason or fact, and is thus outside the scope of the Division's
jurisdiction. Bro. of Railroad Trainmen vs. Central of Georgia
RWY.,
USCA
(S), 1969, 415 F.2d 403; 71 LRRM 3042.
I must dissent.
~S.J
n ,
R. J. Irvin
Labor Member