Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29230
THIRD DIVISION Docket No. CL-29493
92-3-90-3-427
The Third Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(CSX Transportation, Inc. (formerly The Chesapeake and
( Ohio Railway Company)
PARTIES TO DISPUTE:
(Transportation Communications International Union
STATEMENT OF CLAIM:
"Claim of G. C. Peace, claiming (8) hours pro-rata rate, $110.46
daily, 4:00 p.m. to 12:00 m.n. on October 5, 1985 account rearranged from 04
machine to I#3 machine."
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 employes 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 waived right of appearance at hearing thereon.
Prior to 1980, the Chesapeake 5 Ohio Railway Company (C50) (now
merged into CSX since August 31, 1987) and the Lakefront Dock and Railroad
Terminal Company (LDTR) operated separate ore dumping and coal loading facilities at Toledo, Ohio. C
separate facilities were performed by employees represented under separate contracts between TCU and
Upon due notice to the Organization, the C60 and LTDR facilities were
transferred and consolidated, along with similar functions performed on the
Conrail properties, effective April 1, 1980. In connection with that coordination, the former C60 Di
Chairman entered into a Letter-Agreement dated March 28, 1980, reading as
follows:
Form 1 Award
No.
29230
Page 2 Docket
No.
CL-29493
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"As advised during our conference on this matter,
the coordination of the Lake front-Presque Isle facil
ities contemplates that the coal dumping in the coor
dinated operation will primarily be handled at the
Presque Isle facility while ore will be handled
primarily through the Lakefront facility. However,
as further advised, it may become necessary, because
of operating conditions, to handle coal loading at
the Lakefront Dock facility and/or ore unloading at
the Presque Isle facility. In connection therewith,
and in connection with utilization of the Dock Clerk
positions at the Presque Isle facility, it was under
stood that:
1. The positions of Dock Clerk-Ore C-25 and C-29, as
well as the position of Swing Clerk C-373, will
be retained in their present 'closed season'
status and redesignated as 'Dock Clerk A2' with
duties as are presently assigned positions of
Dock Clerk on n3 and #4 Machines, pending the
'opening' of I12 Machine. In connection there
with, the hours of assignment for the position of
Dock Clerk C-25 will be changed from 7 AM - 3 PM
to 8 AM - 4 PM.
2. In those cases where no loading operations are in
progress at either
No.
2, 3 or 4 Machines, the
incumbents of Dock Clerk assigned thereto may be
utilized to fill vacancies on other Dock Clerk
positions having the same starting time, or to
assist the incumbents of such other positions
within their assigned hours. In the event that
the vacancies referred to herein cannot be filled
as provided in this Section 2, the applicable
provisions of the Clerks' General Agreement will
apply in connection with such vacancies.
3. In the event that it would be necessary to oper
ate the Ore Machine at Presque Isle on an occa
sional basis, the incumbents of Dock Clerk at
No.
2, 3 of 4 Machines may be utilized to perform
such work when no coal loading operation is in
progress at their respective Machines. In the
event that no Dock Clerk is available to perform
service on the Ore Machine as contemplated in
this Section 3, applicable provisions of the
Clerks' General Agreement will be utilized to
secure employes to perform service at the Ore
Machine.
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29230
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4. Employes so used in accordance with Sections 2
and 3 above will be paid the rate of pay of their
own assignment or the rate of the vacancy worked
or position assisted, whichever is higher.
5. The understandings reflected herein cancel and
supersede any previous understandings in exis
tence relative to the utilization of incumbents
of Dock Clerk positions located at the Presque
Isle facility, C60, Walbridge, Ohio."
Less than three months after the coordination, the first of a number
of disputes arose regarding the assignment of work by the Carrier to employees
in the Dock Clerk classification at the Presque Isle facility. That lead case
was decided by Public Law Board
No.
3450, Award 37 on July 24, 1990. Because
that decision is pivotal to our disposition of the present case, we quote it
verbatim:
"STATEMENT OF CLAIM:
(a) Carrier violated Rule 24 of the Clerks
General Agreement
No.
9, and the terms of Memorandum
Agreement signed March 27, 1980, and Letter Agreement
dated March 28, 1980 when on June 23, 1980 it arbitrarily rearranged Clerk Raymond J- Gerrard from t
position of Dock Clerk C-75, Coal Machine No. 4 to
Coal Machine
No.
2.
(b) Carrier shall now compensate Clerk Gerrard
eight (8) hours pay at the pro rata rate for June 23,
1980, in addition to any other earnings for that day,
account rearranged to from his regular assignment.
OPINION
OF BOARD: The relevant facts of this claim
are not in dispute. Claimant R.J. Gerrard was regularly assigned to the Dock Clerk Position, C-75, C
Machine
No.
4, at Carrier's Presque Isle facility in
Toledo, Ohio. Claimant's work week ran from Sunday
through Thursday, with rest days on Friday and
Saturday, at a rate of $80.23 per day. On Monday,
June 23, 1980 upon reporting for his tour, Claimant
was notified that he was to perform his tour at Coal
Machine
No.
2 rather than his regular assignment at
Coal Machine
No.
4.
On June 23, 1980, the Organization filed the instant claim alleging that Carrier's action violat
Rule 24 of the Clerks' General Agreement
No.
9, the
Memorandum Agreement of March 27, 1980, and the
Letter Agreement dated the following day. Carrier
timely denied this claim. Thereafter, the claim was
handled in the usual manner, on the property. It is
now before this Board for adjudication.
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The Organization contends that Carrier's action
constituted a rearrangement not in conformity with
the requirements of Section 2 of the March 28, 1980
Agreement, and that, as a result, Claimant is en
titled to compensation as provided in Rule 24(c) of
the Clerks' General Agreement. The Organization
notes that Section 2 permits rearrangement only 'to
fill vacancies on other Dock Clerk positions having
the same starting time, or to assist the incubments
of such other positions within their assigned hours,'
neither condition existing here.
The Organization urges that there was no Dock
Clerk position assigned to work at Coal Machine No. 2
during Claimant's shift, and that Claimant was not
rearranged to fill a vacancy within Section 2.
Additionally, it points out that Claimant had not
filed a letter of rearrangement. It concludes that
Claimant is entitled to 'be paid a minimum day at the
pro rata rate of his regular position, in addition to
the amount to which [he is] entitled for working
position to which arranged' within Rule 24(c). Ac
cordingly, the Organization seeks that the claim be
sustained.
Carrier, on the other hand urges that it acted in
accordance with the various Agreements. Carrier
maintains that it is within its authority to estab
lish a position on machine No. 2 for one day, and
that, Section 2 authorizes the utilization of Claim
ant to fill the vacancy thus established. In Car
rier's view, Section 2 authorizes the shifting of
Claimant to perform his tour at another machine.
In Carrier's view, Organization has failed to sus
tain its burden of proof. Carrier argues that the
Organization did not, and can not, prove that the
Agreement was violated when Claimant was asked to
perform the same duties, during the same hours, for
the same amount of compensation, merely because the
machine was number 2 rather than 4. Accordingly, for
these reasons, the Carrier asks that the claim be
denied.
After careful review of the record evidence, We
are convinced that the claim must be sustained. This
is true for the following reasons.
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Page 5 Docket No. CL-29493
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First, the language of Section 2 of the March 28,
1980 Letter Agreement clearly provides that an in
cumbent of Dock Clerk positions No. 2,3 or 4 may be
'utilized to fill vacancies on other Dock Clerk
positions having the same starting time...' when
there are 'no loading operations...in progress' at
his regularly assigned position. The facts set forth
in the job description sheets for Monday, June 23,
1980, establish that there was no Dock Clerk sched
uled to work on machine No. 2 during the midnight to
8 a.m. shift. (See Employes' Exhibit 'L') Accord
ingly, Claimant was not 'utilized to fill [aj va
cancy...having the same starting time...' within
Section 2. A vacancy is not created until an employe
scheduled for the tour fails to appear for that tour.
Thus, the conclusion is inescapable, that where no
employe is scheduled, no vacancy within the meaning
of Section 2 can occur. Claimant was not utilized to
fill a vacancy.
Second, as a result of the foregoing, Claimant
falls within the ambit of Rule 24(c). This Rule
provides in relevant part:
'An employe rearranged to a position the starting time of which is the same as his own starting
time, who has not filed letter of rearrangement
for the position to which rearranged, will be
paid a minimum day at the pro rata rate of his
regular position, in addition to the amount to
which entitled for working position to which
rearranged.
For the foregoing reasons, the claim must be sustained.'"
While the above matter was awaiting decision by Public Law Board No.
3450, a number of other similar claims were filed. Among those was the present claim filed by the Cl
on the property, the Carrier linked some twenty four of those related claims,
specifically including the present claim with the case then pending on appeal
which resulted in Public Law Board No. 3450, Award 37. In that connection,
the final denial letter by the Director of Labor Relations, dated March 25,
1987, reads in pertinent part as follows:
"This refers to your letter of May 11, 1984, File:
CG-16411, your file: HV-995, in which claim was filed
on behalf of R. J. Gerrald for allegedly being rearranged from Coal Machine No. 4 on June 23, 1980.
Form 1 Award No. 29230
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The following claims concern the same issue at
this same location.
Carrier File BRAC File
CG-20962 HV-1209
CG-20963 HV-1212
CG-20964 HV-1213
CG-20988 HV-1218
CG-20989 HV-1219
CG-21043 HV-1223
CG-21044 HV-1224
CG-21045 HV-1225
CG-21046 HV-1226
CG-21090 HV-1229
CG-21091 HV-1230
CG-21092 HV-1231
CG-21093 HV-1232
CG-21155 HV-1235
CG-21156 HV-1236
CG-21157 HV-1237
CG-21158 HV-1238
CG-21159 HV-1239
CG-21160 HV-1240
CG-21161 HV-1241
CG-21162 HV-1242
CG-21163 HV-1243
Claim HV-995 was declined for the following
reasons:
'You are contending that the claimant in this
matter was rearranged on the date of claim to perform
service on a coal machine other than the machine to
which the claimant is assigned.
Contrary to your contention in this case, there
was no rearrangement effected on date of claim. It
is a clear and undeniable fact that the incumbents of
these coal machine positions are assigned the operation of all coal machines at this l
certain conditions and these conditions were existent
on the date of claim. Therefore, no rearrangement
whatsoever was made in connection with this matter.'
The above referenced claims are declined for the
same reasons."
Subsequent to the issuance of Public Law Board No. 3450, Award 37, however,
Carrier refused to consider that decision authoritative precedent, alleging
that: 1) "the present case is materially different" and/or 2) "the reasoning
in Award No. 37 was flawed and the conclusion erroneous."
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It has long been recognized and accepted in labor-management arbitration generally, and in railr
prior decisions involving the same facts, issues and Parties should be considered authoritative prec
judicata and stare decisis do not technically apply in arbitration. But considerations
support the principle that final and binding decisions interpreting and applying a contract provisio
to pinch," the proper forum for obtaining relief is the bargaining table, not
continual adjudication of ostensibly settled matters. In following such reasoning, the Board held in
"Whatever may be said of the soundness of our
construction of the contract, our conclusion is
impelled by Award No. 1852. That involved a dispute
between the same parties under the same contract and
upon essentially indistinguishable facts. A different conclusion than we have reached would, in effe
overrule the decision in that Award. To do this
would be subversive of the fundamental purpose for
which this Board was created and for which it exists:
settling of disputes. When a contract has been construed in an award the decision should be accepted
binding in subsequent identical disputes arising
between the same parties under the same agreement."
To like effect the Board held in Third Division Award 3229:
"This identical question has been decided in
accordance with the views which we here express in
two well reasoned opinions of this Board. Awards 813
and 2205. We have no question of the correctness of
those decisions. Even if we did have, we would doubt
the advisability of deciding the matter differently
today. A construction of a rule which is not unreasonable should be maintained. For it is important
that neither the carrier nor the employes should be
left in uncertainty as to their rights."
Application of the foregoing principles requires that we sustain the
present claim. The reasoning of Public Law Board No. 3450, Award 37, is not
demonstrably flawed nor is that decision palpably erroneous. Carrier has not
persuasively demonstrated that the facts of the present case are materially
and sufficiently distinguishable to warrant a different conclusion.
For all of the above reasons, and for the reasons set forth in Public
Law Board No. 3450, Award 37, which we adopt and confirm, the present claim
must be sustained. For reasons not entirely clear on this record, the Organization's Ex Parts Submis
hours and thirty-five minutes. Accordingly, the claim is sustained only to
the extent of seven hours and thirty-five minutes.
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A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: 00e
000,
)Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 18th day of May 1992.