The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
Carrier maintains a ship loading facility for exporting of phosphate at Rockport, Florida. The phosphate comes from various mines throughout central Florida. On February 24, 1989, six employees of a local contractor, General Railway Service, began cleaning phosphate cars at Rockport. A total of ten cars were to be cleaned each weekday, utilizing a five man crew plus a supervisor.
On March 27, 1989, the Local Chairman filed a claim on behalf of "the six (6) senior available employees, unassigned in preference," for eight (8) hours, "beginning February 24, 1989." The Organization maintained that prior to February 24, 1989, any phosphate car which required cleaning at Rockport "was assigned to Phosphate Handlers (TCU members) at that point." The Organization did not rely on the "exclusivity" aspect of Rule 1-Scope Rule, but rather on Section(c) of Rule 1, the portion of which speaks specifically to "cleaning freight equipment." Carrier denied the claim asserting that the only "car cleaning" that the TCUrepresented employees had exclusively performed in the past was biannually to insure that a block of fifty cars were empty in order to calibrate the belt scale. Carrier continued by maintaining that cars are cleaned for commodity loading at various locations where Clerks are employed, but "are not cleaned by clerks at all such locations." Finally, Carrier submitted that subcontracting of the work was necessary to utilize automated equipment which more efficiently cleans the cars on a daily basis.
During a subsequent claims conference, the organization furnished the Carrier with work reports at the Rockport Terminal during October and November 1984 which the Organization contends prove that clerical employees clean cars other than when required to do so for light weight purposes; and a copy of a bulletin in June 1988 for a Car cleaner position at Lakeland, Florida (Winston Form 1 Award No. 30778
Yard) which show car cleaning as one of its duties. The Organization further pointed out that: "Since only clerical employees were assigned car cleaning at Rockport, this dispute is being progressed under the provisions of the amended Scope Rule. Note the side letter Agreement provides that:
Carrier asserted, as a threshold argument, that the Organization's "failure to identify a proper claimant is reason enough" for this claim to be declined. Claimants are readily identifiable from a list of "Senior Idle Employees," and that is sufficient. Upon review of the merits of this dispute, we find a preponderance of the evidence supports the organization's assertion that the work in dispute is "cleaning freight cars" within the meaning of Rule 1, Section (c). Moreover this work has been regularly performed by TCU-represented employees at the Rockport Phosphate loading facility and elsewhere on the system. The Agreement language is clear and it is corroborated by probative evidence of practice. Carrier's Quality Action Committee apparently concluded that the outside contractor could do a better job of performing the Agreement-covered work than Agreement-covered employees, but the work reservation language cannot be unilaterally jettisoned just because it is deemed inconvenient or inefficient.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) be made. The carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATION kI" R:AILROAD ADJUSTMENT BOARii
THIRD DIVISION
The Board issued a sustaining decision in Award 30778, dated :April 6, 1995, deciding Docket CL-29967. I he standard order accompanying that Award directed Carrier to make the .ward cffecti%e on or before thirty (30) days following the postmark date the award ",is transmitted to the Parties. By letter dated September 25, 1995, the Organization's General Chairman advised the Board that "a dispute exists between the Parties with respect to the proper interpretation of Award No. 30778, Docket CL-29967 and requested "an official interpretation thereon." Upon due notice, Carrier joined in the request for interpretation. Both Parties filed supplemental briefs and presented oral argument before the Board, on .June 16, 1996.
giving rise to that claim; i.e., on February 24, 1989, and for an indeterminate period of time thereafter, Carrier utilized the services of six employees of a local contractor, General Railway Service, to clean phosphate cars at its Rockport, Florida, Phosphate Loading Facility. We were persuaded from the record evidence that performance of that specific work at that specific location was reserved to Claimants by the language of Rule 1, Section (c) of the Scope Rule in the Agreement of June 1, 1981. That was the only issue presented for our determination in Docket CL-29967 and that is the only issue we decided in Award 30877.
As nearly as we can determine from an inadequately developed record, the dispute which the Parties now attempt to have resolved through the medium of an "Interpretation of .award 30778" concerns whether relocation of the phosphate car cleaning work performed by General Railway Services on and after February 24, 1989 at the Rockport Phosphate Loading Facility to a different location for performance by a different outside contractor or other employees not covered by the CSX/TCU Agreement would cure the \iolation found and toll the damages awarded in Award 30778.
We find that we are unable to answer those questions on this record in the context of this Interpretation request. Accordingly, we must respectfully decline to do so. Not least of the reasons impeding our expression of an informed judgement on the disputed point is the apparent conflict of material facts between the Parties as to whether or when the specific work grieved in Docket CIr29967 was relocated from the Rockport, Florida, Phosphate Loading Facility to another location in Florida for performance by other outside contractors and/or employees. We will not decide such an important matter on the basis of speculation, hypotheses or irreconcilably conflicted material facts. However, the primary reason we decline to answer the issue presented is that it constitutes a different dispute than the fact-specific, location-specific claim which we decided in Award 30778, Docket CL-29967.
If the Parties jointly wish for us to undertake determination of that different dispute on the basis of an adequate factual record, we would undertake to do so. But it is neither possible nor appropriate for us to do so on the basis of the present claim.
In our considered judgement, the particular claim submitted in Docket CL-29967 was determined with finality by the sustaining decision in Award 30778. That decision Page -t Serial No. 363
held that the specific action (if the Carrier which the Organization grieved did constitute a violation of Rule 1 (Scope), Section (c). That decision obligates Carrier to compensate each of six individual Claimants, whose identity is readily determined by a joint check of calling records on and after February 2-1, 1989, eight hours' pay at the rate of time and one-half the Phosphate Ilandler's rate (inclusive of subsequent pay increases including COLA), for Februarv '_4, 1989, and for each subsequent day when that specific grieved violation occurs until the violation ceases. Those determinations and directives are reiterated herein. It is well settled that enforcement of its own decisions is becond the purview of this Board. but we do urge and anticipate prompt compliance %sith lward 30778.
Referee Dana 1:. Fischen NN lit) cat with the Division as a neutral member when kward 30778 was adopted. also participated with the Division in making this Interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION: The Board issued a sustaining decision in Third Division Award 30778, dated April 6, 1995, deciding Docket CL-29967; and subsequently issued Interpretation No. 1 under date of March 4, 1997. By joint letter dated November 5, 1997, the Organization's General Chairman and Carrier's Director Labor Relations advised the Board that the Parties had arrived at a mutually satisfactory procedure for identifying the appropriate Claimants and their respective proportionate share of the overall damages payable in compliance with Award 30778.
On that basis, the Board adopts and endorses the final disposition of this matter set forth in pertinent part in the above-referenced Joint Letter, and directs compliance with those terms and conditions, as follows:
Referee Dana E. Eischen who sat with the Division as a neutral member when Award 30778 was adopted, also participated with the Division in making this Interpretation.