Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37228
Docket No. CL-37046
04-3-02-3-10

The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.

(CSX Transportation, Inc. (former Seaboard Coast
( Line Railroad)
PARTIES TO DISPUTE:
(Transportation Communications International Union

STATEMENT OF CLAIM:





FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form 1 Award No. 37228
Page 2 Docket No. CL-37046
04-3-02-3-10
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 were given due notice of hearing thereon.
As Third Party In Interest, the United Transportation Union - Yardmasters
Department ("UTU") was advised of the pendency of this dispute and chose to file a
Submission with the Board.
Aside from the Labor and Carrier representatives from the Board, also
present at the Referee Hearing in this matter were representatives of the
Organization, the Carrier and the UTU. As a result, extensive presentations by the
Organization, the Carrier and the UTU were made to the Board.
In this claim, the Organization protests someone other than a Customer
Service Representative (CSR) at the Customer Service Center (CSC) in
Jacksonville, Florida, using the computer function YSHA.
In Third Division Award 37227 we discussed at length the history and
Awards concerning the establishment and transfer of Clerks' work from the field to
the CSC in Jacksonville. The analysis examined the specific work and location in
dispute, both before and after the establishment of the CSC. In that Award, we
held:









Form 1 Award No. 37228
Page 3 Docket No. CL-37046
04-3-02-3-10
1991 Implementing Agreement took effect. If the Organization
makes those showings, it has sufficiently shown that the work was
transferred from the disputed location to the CSC under the terms
of the 1991 Implementing Agreement and was improperly
performed by someone other than a CSR at the CSC. Successful
showings by the Organization in that regard will result in those
claims being sustained with a remedy requiring the Carrier to pay
$15.00 per claim."






Second, as discussed in Third Division Award 37227, we closely looked at what the Clerks described its their work before and after the establishment of the CSC in Jacksonville, paying particular emphasis on statements they provided. According to the form of those statements (TCIU Exhibit 24 at 52-277):



Form 1 Award No. 37228
Page 4 Docket No. CL-37046
04-3-02-3-10



Conspicuously missing from the described work is any reference to the YSHA function.

Third, examination of those statements does not reveal that any of the disputed work was performed by a Clerk at Dothan, Alabama.

The Organization has not met its burden to show that as a result of the 1991 Implementing Agreement the disputed work was transferred from Dothan to the CSC. See Third Division Award 37227. The claim shall be denied.







This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.


                      By Order of Third Division


Dated at Chicago, Illinois, this 27th day of October 2004.

r
              CARRIER MEMBERS' DISSENT


                      TO


          THIRD DIVISION AWARDS 37227-37236


DOCKETS CL-37035; CL-37046; CL-37053; CL-37054;

CL-37058; CL-37075; CL-37083; CL-37087; CL-37093; CL-37111


                (Referee Edwin H. Bean)


The instant Third Division Award 37227 and companion Awards dealt with the issue of the performance of various computer functions such as adjusting yard inventory, reporting bad order freight cars and issuing work orders at field locations by Yardmasters and Clerks.


The clerical field computer input work was coordinated into the Customer Service Center located in Jacksonville, Florida, beginning in 1991 via what is commonly known as the "Visions Agreement." Because this coordination involved work from various former railroads that are now part of CSXT, that Agreement was an Implementing Agreement reached pursuant to, and in satisfaction of, the New York Dock employee protective conditions of the Interstate Comimerce Commission, now the Surface Transportation Board.


The claims were filed for occasions when computer functions were performed at field locations after the coordination. The Board found that the Customer Service Center Clerks were aggrieved when Yardmasters and Clerks in the field performed various computer functions.


A reading of the Board's Award makes clear that an interpretation of the 1991 New York Dock Implementing Agreement was at the heart of the dispute between the Carrier and TCU. It is well settled that the Board lacks subject matter jurisdiction over disputes involving New York Dock implementing agreements. See e. ., Third Division Awards 29317, 29660, 35360, and 37138. Disputes requiring the interpretation or application of a New York Dock implementing agreement must be handled in accordance with the exclusive arbitration procedures set forth in New York Dock.

CARRIER MEMBERS' DISSENT TO
THIRD DIVISION AWARDS 37227-37236
PAGE 2 of 3

Although the participants did not raise this threshold jurisdictional issue, the Board's subject matter jurisdiction cannot be enlarged through a mistake of the parties. Even when the parties do not raise the issue, the Board can do so itself. Because the Board lacked subject matter jurisdiction in this case, it exceeded its ,jurisdiction as defined in the Railway Labor Act, 45 U.S.C. § 153, First, and Awards 37227 - 37236 should be considered null and void and without any precedential effect for this reason alone.


In addition, the Board missed or chose to ignore a basic issue in this case. This computer work was performed by Yardmasters, Clerks and other employees prior to the consolidation of the clerical customer service work into the Customer Service Center in Jacksonville. The Carrier's New York Dock notice to TCU of its intent to coordinate and consolidate the clerical customer service work into Jacksonville was to do only that -- consolidate the work performed by Clerks. The notice (lid not propose to transfer the work of Yardmasters. It is important to note that the UTU-Yardmasters Department was not named in the New York Dock notice served on TCU and was not a party to the 1991 Implementing Agreement. The implementing agreement procedures of New York Dock, Article I, Section 4, require that the UTU-Yardmasters Department be a party to an implementing agreement that purported to coordinate work performed by Yardmasters and transfer it to another craft's Collective Bargaining Agreement. The record shows that the UTU-Yardmasters Department was not a party to the 1991 Implementing Agreement. Accordingly, neither the Carrier nor TCU had the right or authority under the 1991 Implementing Agreement to transfer work performed by Yardmasters to Jacksonville in order to give it to Clerks. With a swipe of the proverbial pen, the Board has taken work "shared" between at least two crafts at field locations prior to 1991 and given it exclusively to a single craft.


The Award's crafted language cannot circumvent this issue, nor justify the conclusion that Yardmasters can no longer perform work they had done in the past. The Award is based upon an erroneous analysis of the facts of the case, contrary to the requirements of the New York Dock conditions, and no amount of rationalization can support removal of existing work from the Yardmaster craft. Most importantly, these Awards exceed the jurisdiction of the Board.

CARRIER MEMBERS' DISSENT TO
THIRD DIVISION AWARDS 37227 - 37236
PAGE 3 of 3

    We dissent.


                      Michael C. Lesnik


                            .J 9


                      Martin W. Tinge> >ut


                        rne.R. Henderson


                      o P. Lang