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.



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:
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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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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:










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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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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






















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:


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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


To like effect the Board held in Third Division Award 3229:



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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Attest: 00e 000,
)Nancy J. r - Executive Secretary

Dated at Chicago, Illinois, this 18th day of May 1992.