Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31731
Docket No. MS-32221
96-3-94-3-606
The Third Division consisted
of
the regular members and in addition Referee
Robert Richter when award was rendered.
(Charles J. Munafo
PARTIES TO DISPUTE:
(Staten Island Rapid Transit Operating Authority
STATEMENT OF CLAIM:
"On the basis
of
harassment and discrimination and the fact I submitted
two documents, Exhibit #2. Vehicle Condition Reports and Exhibit #1,
Maintenance Log Book,
of
NRAB exhibits. I am seeking the following
award: Reinstate to trackmanimachine operator position with full seniority
rights unimpaired retroactive to June 23, 1994 and all pay and monies lost
from demotion
of
trackman/machine operator position ($706.80 per week)
to trackman position ($645.30 per week), with all pay lost for the period of
30 davs, 7 hours and 40 minutes, seniority rights as a driver for company
vehicles which require New York CDL license and removal from service
record of ail hearings."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and ail the
evidence, finds that:
Parties to said dispute were given due notice
of
hearing thereon.
The Carrier takes the position that this Board lacks jurisdiction to decide this
case. Its position is that the employees
of
the Staten Island Rapid Transit Operating
Authority are not subject to the Railway Labor Act.
In an ICC decision dated September 21, 1987 it declared that the Staten Island
Rapid Transit Operating Authority was no longer a Carrier as defined in Section 1.
First
of
the Raihvay Labor Act. The Railway Labor Executives' Association appealed
the decision to the United States District Court Eastern District
of
New York. On
November 22,1988 the Court issued the following judgment.
Form 1 Award No. 31731
Page 2 Docket MS-32221
96-3-94-3-606
MISHLER. District Judge
"This action having come on for a hearing on the defendants' motion
for summary judgment and plaintiffs' cross-motion for summary judgment
before the court, Honorable Jacob Mishler, District Judge, presiding and
the court having rendered its decision granting defendants' motion and
denying plaintiffs' motion,
It is ORDER and ADJUDGED that the complaint be and the same
hereby is dismissed on the merits; and
It is further ADJUDGED and DECLARED that the labor relations
bet%veen Staten Island Rapid Transit Operating .Authority ("SIRTOA")
and its employees is not subject to the provision
of
the Railway Labor .act,
45
U.S.C. § 151 et
jeq.
as of
September 21, 1987 (I.C.C. decision and
order); and
It is further ADJUDGED and DECLARED that employees of
SIRTOA who allege injuries sustained while in the employ of SIRTOA, on
and after May 1, 1986 do not have a right
of
action against SIRTOA to
recover for such injuries under the Federal Employer's Liability Act
("FELA"), 45 U.S.C. § 51 el M..; and
It is further ADJUDGED and DECLARED that SIRTOA is a
public benefit corporation
of
the State
of
New York and a subsidiary of the
Metropolitan Transportation Authority ("NITA"), created by the MTA
pursuant to N.Y. Public Authorities Law § 1266(5) and its employees are
public employees as defined in N.Y. Civ. Service Law § 200 eA
nq.
(Taylor
Law); and
It is further ORDERED and ADJUDGED that employees who
allege injuries sustained while in the employ
of SIRTOA
on and after May
1, 1986 (Service date
of I.C.C.
decision authorizing abandonment and
discontinuance
of
freight service) are enjoined, restrained and prohibited
from instituting any action under FELA or prosecuting such claim that is
presently pending.
Defendants shall recover
of
plaintiffs the costs
of
this action."
Form I Award No. 31731
Page 3 Docket MS-32221
96-3-94-3-606
This Board was created by the Railway Labor Act for those employees and
Carriers as defined in Section 1, First of the Act. Inasmuch as the Staten Island Rapid
Transit Operating Authority and its employees have been adjudged as not covered by
the Act, this Board lacks jurisdiction to hear this case.
AWARD
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above. hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, I11inois, this 25th day of September 1996.