Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29681
THIRD DIVISION Docket No. TD-29352
92-3-90-3-266
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(C5X Trans:or;ation, Inc.
STATEMENT
OF CLALM:
"(a) CSK Transportation, Inc. ('Carrier') violated its Train Dispatchers' basic schedule agreeae
train dispatching center, ('JCTDC'), including Article 1(b) 1 thereof, when, on
and after January 1, 1989, is allowed non-agreement personnel in its Jacksonville Control Center ca
various yard forces concerning the motive power to be assigned to trains
moving on the Florence Division.
(b) Because of the lost work opportunities resulting from said violation, the Carrier shall now
to Assistant Chief Train Dispatchers in the JCTDC for each of the three
shifts, beginning with first shift on January 1, 1989 and continuing on each
shift and date thereafter until the violation ceases, to a pool of Train
Dispatchers holding seniority on the JCTDC seniority roster (including chose
referred to in Section 9(b) of the January 9, 1988 Memorandum Agreement), in
addition to any other compensation they may have for such dates.
(c) The idencicies of individual claimants included in the pool referred to in paragraph (b) abo
JCTDC seniority roster, in order ca avoid the necessity of presencing a multiplicity of daily claims
determined by tire American Train Dispatchers Association."
FINDINGS:
The Third Div:s:on 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 emp1oye 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.
Form 1 Award No. 29681
Page 2 Docket No. TD-29352
92-3-90-3-266
The Organization has filed this Claim, which is one of several similiar Claims pending with the Carr
non-Agreement personnel in Its Jacksonville Control Center to issue instructions directly to mechani
motive power to be assigned to trains. The Organization alleges this work is
reserved exclusively to Chief, Night Chief and/or Assistant Chief Dispatchers
under the provisions of .Article 1 - Scope of the January 9, 1988 Agreemenc,
which reads, in pertinent part, as follows:
"(b) Definictons
1. Chief Train Dispatchers
Night Chief Dispatchers
Assistant Chief Train Dispatchers
These classes shall include positions in which
it is the duty of incumbents to be responsible for
the movement of trains on a Division or other
assigned territory, involving the supervision of
train dispatchers and other similar employees; to
supervise the handling of trains and the distribution of power and equipment incident thereto; and
to perform related work.
~i,e
NOTE: These definitions shall not operate to
restrict the performance of work as between the
respective classes herein defined, but the duties
of these classes may not be performed by officers
or other employees. The compensation of employees
performing the work of two or more of the classes
herein defined shall be that of the highest rated
class of work which they perform."
This is a dispute that is not without some history, predating the
creation of CSX Transportation, Inc. On August 24, 1979, ATDA General
Chairman Shay filed a complaint with the Director of Labor Relations of the
Louisville 6 Nashville Railroad (LSN), one of the predecessor companies of CSX
Transportation, request:^g that the positions of Assistant Directors of Train
Operations and Managers of Train Operations at the Transportation Control
Center in Louisville be reclassified as Assistant Chief, Night Chief or Chief
Train Dispatcher postcions. This request was made pursuant to the May 27,
1937 National Agreement, amended by the !lay 30, 1979 National Agreement (the
"37/79 Agreement"), and was progressed to the Railroad-Train Dispatchers Joint
Committee, which deadlocked. The issue was then presented to ATDA President
Hilbert and NRLC Chairman Hopkins, who also deadlocked.
Form 1
Award No. 9681
Page 3 Docket No. TD-29352
92-3-90-3-266
On March 10, 1981, a similar request was filed by ATDA General
Chairman Mullinax with the Director of Labor Relations of the Seaboard Coast
Line (SCL), another predecessor company. It, too, was progressed until ATDA
President Collins and Hopkins deadlocked.
The ATDA, on August 21, 1984, proposed the establishment of a Special
Board of Adjustment under Section 3 of the Railway Labor Act, to resolve the
dispute concerning the SCL. Because the parties were unable to concur on a
statement of issue to be presented to an SBA4an Agreement to establish the
Board could not be reached. Carrier subsequently informed the National
Mediation Board (NMB) t`at the Organization's request for a Special Board of
Adjustment was inappropriate as the Organization was either seeking to change
existing Agreements or was attempting to submit a representation dispute. The
NMB then established a Procedural Board with William E. Fredenberger, Jr.
serving as Neutral Member. Before the Procedural Neutral, the Organization
proposed the following Question at Issue:
"Dispute concerning proper classification of
certain positions now located in the Carrier's
Operations Control Center, Jacksonville, Florida,
arising out of two separate complaints (dated
August 24, 1979 and March 10, 1981, respectively)
presented under the Agreement Dated May 30, 1979
(amending the May 27, 1937 National Agreement)
between Railroads represented by the National
Carrier's conference Committee and employees of
such railroads represented by the American Train
Dispatchers Association."
The Procedural Neutral accepted the Organization's proposal as the
one to be presented to the Merits Board, rejecting the Carrier's proposed
Question at Issue, which read as follows:
"Are the American Train Dispatchers Association Representatives correct in their contention
that work being performed by employees in the
Operations Center on Seaboard System Railroad In
Jacksonville, Florida 1s a violation of the ATDA's
scope rule"
The Carrier tried, unsuccessfully, to reopen the proceedings before
the Procedural Neutral, on the basis that the Organization, in litigation
involving the ATDA and the Maine Central Railroad, had taken the position that
disputes handled under the "37/79 Agreement" were not arbitrable. The Organization's Question was th
Herbert L. Marx, Jr. serving as the Neutral Member.
Form 1 Award No. 29681
Page 4 Docket No. TD-29352
92-3-90-3-266
on November 30, 1988, Public Law Board No. 3829 issued its decision
in the matter before it, denying the Organization's Claim. In doing so, the
Board held:
"Considerably more convincing is the Carrier's
demonstration that the new positions, at or near
the top of the management hierarchy of the operations Control Center, are concerned with overall
system-wide control and direction, overseeing the
continuing functions of those in the Train Dispatcher Group. The Carrier contends that employees
in the cited positions carry 'system level
responsibilities for distribution of power and
management of the Carrier's assets
....'
Further support for this view is found in the
[CC Order on which the Organization relies. This
refers to Chief Train Dispatcher and Assistant
Chief Train Dispatcher being responsible for train
movement 'on a division or other assigned territory.' The Carrier has demonstrated that the
positions under review here have responsibilities
not limited to 'a division or other assigned
territory.' The Organization points out that on
some smaller railroads, Chief Train Dispatchers are
assigned to an entire system. Here, however, the
divisional (i.e., less than system-wide) responsibility is and has been appropriate.
There is, further, no showing by the Organization that the management level positions
established at the centralized Operations Control
Center have in any way vitiated the existing responsibilities and work assignments of the Train
Dispatcher Group. Host significantly, direct
supervision of the Train Dispatchers remains with
the Chief Train Dispatchers.
There is, in sum, no showing that managementlevel positions, established in relation to a
system-wide operations center, fit the definitions
of 'positions, the duties of which fall within the
scope of the Train Dispatcher Group.' Thus, the
claim chat such positions should be classified
within the Train Dispatcher Group must fall."
Carrier argues this issue was put to rest by Public Law Board No.
3829, and is now res judicata. The Organization responds that the earlier decision was an int
requires an interpretation of the CSX-ATDA Agreement, which was not raised
Form 1 Award No.
29681
Page 5 Docket No. TD-29352
92-3-90-3-266
before or addressed by the Public Law Board. In this regard, we consider the
Organization's argument more persuasive. The role of the Public Law Board was
to consider the reclassification of the positions, which required it to examine the positions in the
Organization herein had not been previously dealt with in the earlier proceedings.
The manner in which the organization has framed the issue has narrowed the scope :' review of th
Senior Manager Labor Relations Arledge, ATDA President Irvin wrote:
" . . . this is to advise that if compliance
with the various Scope rules, i.e., all instructions concerning power distribution must be issued
to mechanical and yard forces through covered
Chief, Night Chief and/or Assistant Chief Dispatchers, is not forthcoming by January 1, 1989, we
have no choice but to present time claims for violations occurring on and after that date.
Other personnel may, of course, make determinations concerning the distribution of power, but
the instructions must be issued by those covered by
our Scope rules. Our position is supported by
Third Division Awards 16556, 18568, 18589, 18942,
19083, 26137 and several Public Law Board Awards."
There is no record during the handling of this dispute of the Organization recanting the above p
department and yard forces. This, in fact, is all that is mentioned in the
Organization's Statement of Claim.
What the Agreement reserves to covered employees is the right to
supervise the handling of trains and the distribution of power and equipment
incident thereto." From the Award of Public Law Board No. 3829, we conclude
that right is limited to such work in connection with the movement of trains
on a Division or other assigned territory.
We have difficulty comprehending why determinations concerning the
distribution of power, made in a system-wide Control Center, is not the type
of supervision reserved by the Scope Rule, but the issuance of instructions to
carry out those determinations is reserved. The Rule refers generally to
supervision, not specifically to communication. The Rule does not require
Carrier to use Dispatchers as intermediaries for some tasks, and not for
Form 1
Award No. 29681
Page 6 Docket No. TD-29352
92-3-90-3-266
others. The issuance of instructions is an essential part of supervision, and
logically flows from the responsibility to make decisions.
The resolution of this dilemma lies in the arena where the supervision occurs. As noced by Carri
longer simply a Divisional or territorial concern. Interdivisional trains
will use a locomotive consist across the system, and power distribution
decisions must take this into account. Thus, this work goes beyond the scope
of dispatching, which is bound by Divisional or territorial boundaries. Such
was the decision of Public Law Board No. 3829. When the decisions are made on
a system-wide basis, as they are on this Carrier, Public Law Board No. 3829
concluded that they are not covered by the Scope Rule. Neither are the instructions which are issued
therefore, that the Agreement has not been violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
ey J, er - Secretary to the Board
Dated at Chicago, Illinois, this 29th day of June 1993.
LABOR MEMBER'S DISSENT
to
THIRD DIVISION AWARD NO 29681 DOCKET TD-29352
Award No. 29681 denies the claim founded mainly on the
premise that the locomotive power distribution decisions in
dispute, are the type made on a system-wide basis and these
decisions are "...no longer simply a Divisional or
territorial concern." Therefore, the award finds, the duties
in dispute exceed scope coverage. For the reasons set forth
below, the Labor Member finds the rationale of the award
deficient, as it not only ignores over twenty years of well
establishes arbitral precedent, but, additionally it is
clear the majority simply didn't understand the issue.
While it may be true that some of these decisions concern
locomotive power consists that could eventually operate over
the Carrier's entire system, the actual decision relating to
the assignment of locomotives to a particular train must
still occur on a "Division" or "other assigned territory as
those terms are used within the Scope-Rule. After all, the
Carrier's system is made up of divisions or other types of
assigned territory. It follows then, that because locomotive
power assignment decisions directly affect the movement of
trains, the decisions concerning locomotive power
assignments are incidental to the handling of trains.
Page - 2
LM's Dissent
Award 29681/TD-29352
In resolving previous disputes relating to locomotive power
assignments, this Board has dealt with virtually identical
scope rules. Uniformly, the Board has held that locomotive
assignments are incidental to the movement of trains, and,
therefore, the issuance of those instructions accrue to the
class and craft of train dispatcher by virtue of the Scope.
Third Division Award No. 18586
"The message to run two units on train No.
663 and to run them through to Snyder is an order
for the 'distribution of power and equipment'
incidental to the supervision and handling of that
trgin. All of this is work which belongs
exclusively to train dispatchers under the Scope
Rule." [emphasis added]
Third Division Award No 1858,9
"A trainmaster generally has the right to
instruct the dispatcher with respect to the use of
engine units, but the 'distribution of power and
equipment', which is incidental to the handling of
a train, belong exclusively to train dispatchers."
[emphasis added]
Third Division Award No. 19083
"The message is a 'distribution of power and
equipment' incident to the supervision of the
handling of trains. This work belongs exclusively
to the Chief. Night Chief, and Assistant Chief
Dispatcher under Article 1 - Scope Rule."
[emphasis added]
Award Nos. 19 and 24 of Public Law Board 588 similarly held
that the issuance of messages concerning the assignment of
Page - 3
LM's Dissent
Award 29681/TD-29352
locomotive power, which is
incidental
to the supervision of
the handling of trains, by other than train dispatchers,
violates the Scope.
In view of the precedent established by these awards, it is
reasonable to conclude then, if a decision relating to
locomotive power assignment involves a train to be operated
over a division or other assigned territory, then the scope
exclusively reserves to train dispatchers, the right to
exercise "supervision" over the distribution of locomotives
incident to that train's operation. Thus, supervision,
pursuant to the Scope, is much more than a right which is
simply perceived by the Employees.
The Award correctly recognizes that "The [Scope] Rule refers
generally to supervision..." Also, the Award correctly
observes that "The issuance of instructions is an essential
part of supervision..." It would seem to reason then, that
because the Scope requires train dispatcher employees to
exercise "supervision", it also requires them to actually
communicate those instructions. This reasoning is entirely
consistent with ATDA President Irvin's December 2, 1988
letter. Yet, the majority admits its' confusion by stating;
Page - 4
LM's Dissent
Award 29681/TD-29352
"We have difficulty comprehending why
determinations concerning the distribution of
power, made in a system-wide Control Center, is
not the type of supervision reserved by the Scope
Rule, but the issuance of instructions to carry
out those determinations is reserved."
It is a basic tenet of the train dispatcher's Scope,
established through many years of arbitral precedent, that
while initial determinations concerning locomotive power
assignments may be made by other than train dispatchers,
those assignment instructions must be issued to employees
empowered to carry them out by train dispatchers. In an
effort to assure that the majority clearly understand this
concept, this writer provided the Board with copies of many
supporting awards. These were; Third Division Award
Nos.
16556, 18568, 18589, 18942, 19083, and 26137. Also, provided
in support were numerous Public Law Board decisions,
including Award
Nos.
7, 19, 20, 24, 29, 30, and 31 of
PLB588, as well as Award
No. 1
of PLB4218. Each of these
awards uphold the theorem that once initial decisions
concerning locomotive power assignments are made, the Scope
requires those decisions be channeled throuah train
dispatchers. It is difficult to comprehend, how, despite all
of these awards in support of this doctrine, the majority
would still have trouble understanding this aspect of the
dispute.
Page - 5
LM's Dissent
Award 29681/TD-29352
Awards in contrast to those listed above were also provided
to the Board. Award
Nos.
1, 9, and 21 of PLB588 confirm that
Scope compliance is achieved when initial decisions are made
by supervisors, and following those instructions, train
dispatchers implement them by directing those charged with
carrying them out.
It appears at least, the majority's bewilderment is somewhat
balanced within the award. Their perplexity is once again
exposed by the broad statement "The [Scope] Rule does not
require Carrier to use Dispatchers as intermediaries for
some tasks, and not for others." Award
No.
26137 directly
contradicts this assertion holding that is, in fact, exactly
what the Scope requires.
Third Division Award No. 26137
"Whatever may be the Carrier's intent, the
elimination of the 'Middle Man' in this instance
is a violation of the Agreement."
The dispute resolved by Award 26137 involved similar issues
relating to locomotive power assignments being made on a
system-wide basis.
Page - 8
LM's Dissent
Award 29681/TD-29352
The decision rendered in PLB3829 revolved around the
question of whether or not the Power Coordinators' positions
"...fit the definitions of 'positions, the duties of which
fall within the scope of the Train Dispatcher Group."'
Limited to that issue alone, PLB3829 held that they did not.
That issue is significantly different than the one presented
to this Board in the "Statement of Claim".
"(a) CSX Transportation, Inc. (Carrier) violated
its Train Dispatchers' basic schedule
agreement... when... it allowed non-agreement
personnel ...to issue instructions ,direct to
mechanical department and various Yard forces
concerninx motive power to be assigned to
trains..." [emphasis added]
The majority claimed they recognized the difference between
the disputes.
"...we have reviewed the extensive record in this
case and find that the issue raised by the
Organization herein had not been previously dealt
with in earlier proceedings."
They proceeded, however, to resolved this dispute as though
there were no differences.
"...this work goes beyond the scope of
dispatching, which is bound by Divisional or
territorial boundaries. Such was the decision of
Public Law Board No. 3829. When decisions are made
on a system-wide basis, as they are on this
Carrier, Public
Law
Board No. 3829 concluded that
then are not covered by the Scope Rule." [emphasis
added]
Page - 7
LM's Dissent
Award 29681/TD-29352
Such overall inconsistency in reasoning is intolerable in
this business.
I dissent to Award No. 29618. Its findings defy logic, lack
sound reasoning, and disregard established precedent.
Therefore, it is palpably erroneous, and useless as citation
as precedent in the future. [Third Division Award Nos. 4516,
4770, and 60941
/
~z·~L, A. Parmelee
Labor Member