Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32104
Docket No. MS-32555
97-3-95-3-515
The Third Division consisted
of
the regular members and in addition Referee
James E. Yost when award was rendered.
(Jack K. Beasley
PARTIES TO DISPUTE:
(CSX Transportation Company and/or
( CSX Intermodal
STATEMENT OF CLAIM:
"The carrier violated the agreement by removing my name from the
seniority roster, resulting in the loss
of
my seniority and depriving me
of
the right to exercise my seniority and claim rights and privileges under
section 2, paragraph b,
of
an agreement signed and effective on August 1,
1966, commonly known and referred to as the Orange Book Agreement
An award is desired on the reinstatement
of
my seniority and that
I be afforded the compensation, rights and privileges due me under said
contractual agreement."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
Parties to said dispute were given due notice
of
hearing thereon.
CSX Intermodal, hereinafter referred to as Intermodal, was established in 1988
as a broker
of
intermodal transportation services and is a certificated trucking company.
It does not own or operate rolling stock for the purpose
of
transporting freight by rail
in interstate commerce.
With the establishment
of
Intermodal in 1988, CSX Transportation, hereinafter
referred to as the Carrier, ceased its intermodal operations. Jack K. Beasley,
Form I Award No.
32104
Page
2
Docket No.
MS-32585
97-3-95-3-518
hereinafter referred to as the Petitioner, was employed by the Carrier in an official
position being eliminated, and was given the opportunity to exercise his union seniority
to positions within the Carrier or accept an official position with Intermodal and sever
his employment relationship with the Carrier, forfeiting his union seniority. The
Petitioner elected to take an official position with Intermodal.
In September
1989,
Transportation Communications International Union,
hereinafter referred to as TCU, reached an Agreement with the Carrier providing that
individuals who had forfeited seniority to accept an official position with Intermodal
could have their seniority reinstated if they so desired.
Intermodal addressed a letter to the Petitioner dated September
14, 1989,
advising of the Agreement with the advice that if he desired reinstatement of his
seniority, he should sign and date the letter in the space provided and return same to
Intermodal no later than October 15, 1989. The Petitioner's response requesting
reinstatement was received on October 16, 1989, which was oat day after the deadline
and, accordingly, his name was not restored to the seniority roster.
The Petitioner personally appeared before the Board at its headquarters in
Chicago, Illinois, on February 19, 1997, and presented argument in support of his
position that his TCU seniority with the Carrier should be reinstated. The trouble is the
Petitioner's argument comes too late as the record before the Board reveals that he slept
on his rights through 1995 before coming forward to protest the omission of his name
from the TCU roster.
Rule 5(a) of the Agreement between the Carrier and TCU provides in pertinent
part:
1I'he rosters will be revised and posted in duly of each year and will
be open to protest for a period of
sixty
(60) days from date of posting; and
upon presentation of proof of error by an employee or his representative,
such error will be corrected. The Division Chairman and Vice General
Chairman will be furnished with a copy of the rosters."
The Petitioner's failure to protest the omission of his name from the 1990
seniority roster within 60 days of its July 1990 posting was tantamount to forfeiture of
any and all rights to redress.
Form 1 Award No. 32104
Page 3 Docket No. MS-32585
97-3-95-3-518
As noted above, the Petitioner forfeited his employment relationship with the
Carrier in 1988. He has no standing before this Board because he is not an employee
of a rail carrier as that term is defined in Section 151, Fifth
of
the Railway Labor Act,
as amended, reading:
"The term `employee' as used herein includes every person in the service
of
a carrier(subject to its continuing authority to supervise and direct the
manner
of
rendition
of
his service) who performs any work defined as that
of
an employee or subordinate official in the orders
of
the Interstate
Commerce Commission as now in effect ...."
The Petitioner was last employed by Intermodal, which is not a carrier by
railroad as that term is defined in Section 151, First of the Railway Labor Act, as
amended, reading:
"The term `carrier' includes any a:press company, sleeping car company,
carrier by railroad, subject to subtitle IV of title 49, and any company
which is directly or indirectly owned or controlled by or under common
control with any carrier by railroad and which operates any equipment or
facilities or performs any service (other than trucking service) in
connection with the transportation, receipt, delivery, elevation, transfer in
transit, refrigeration or icing, storage, and handling of property
transported by railroad ...." (Emphasis added)
This Board's authority and jurisdiction is drawn from the Railway Labor Act, as
amended, particularly Section 153. First (i) of that section states in pertinent part:
"(I) The disputes between an employee .. and a carrier .. growing out
of
grievances or out of the interpretation or application of agreements
concerning rates of pay, rules, or working conditions ...shall be handled in
the usual manner up to and Including the chief operating officer of the
carrier designated to handle such disputes; but, failing to reach an
adjustment in this manner, the dispute may be referred ...to the
appropriate division
of
the Adjustment Board ...."
This dispute fails on two counts. First, it is not a dispute between an employee
and a carrier. Second, Intermodal is not a carrier as defined and recognized by the
Form 1 Award No. 32104
Page 4 Docket No. MS-32585
97-3-95-3-518
Railway Labor Act; therefore this Board has no jurisdiction over any dispute the
Petitioner may have with Intermodal.
In passing, we would also point out that if by some stretch of imagination the
Petitioner could be considered an employee of a carrier, this Board would still lack
jurisdiction over the dispute for the simple reason that it was not timely filed and
handled in the usual manner up to and including the highest officer designated to handle
such disputes before bringing same to this Board.
For the reasons discussed herein, this Board concludes that it lacks jurisdiction
over this dispute and the claim will be dismissed.
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, Illinois, this 9th day
of July
1997.