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:
"Carrier File 6(00-0f68) TCU File 1.2764(18)SCL
1. Carrier violated the terms of the Agreement, specifically Rule I
and the Customer Service Center Agreement No. 6-008-91, on
the dates noted in each claim, when it allowed the General
Clerk, as named in each claim, located at Dothan, Alabama, to
adjust the Yard Inventory tracks using the computer function
YSHA. This was allowed in lieu of allowing this work to be
performed by the Clerical employes in the Customer Service
Center at Jacksonville, Florida.
2. Carrier shall now compensate the Senior Available Employe,
extra or unassigned in preference, eight (8) hours at time and
one-half at the applicable rate of $149.30 or the punitive rate, if
applicable, for the above violation."
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:
"There are a number of claims presently before the Board and also
held in abeyance pending the outcome of this Award and the other
similar disputes. Therefore, as a guide to the parties for
determining these disputes, in order to prevail the Organization
must show that the disputed work: (1) was performed by someone
other than a CSR at the CSC; (2) was performed by a Clerk at the
specific location in dispute before the 1991 Implementing Agreement
took effect; and (3) was performed by a CSR at the CSC after the low
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."
This claim does not have merit.
First, in denying the claim, the Carrier stated in its letter of April 19, 2001:
".
. . Your claim alleges that the computer function YSHA was used
to adjust the yard inventory tracks. YSHA is not a computer
function, it is the computer record of inventory adjustment that was
performed on a conductor work station."
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):
"In I transferred to Jacksonville, FL from
While at this location, working in the Clerical Craft, myself and the
other clerical employees had the responsibility of adjusting yard
inventory using the YSIA, YSCD, YSCS, YSUC, YSOC, YSAD,
YSEC, YSRE, YSPVV, YSTF and YSBO computer functions ....
Also assigned exclusively to the Clerical Craft, then and now, are the
work order functions used to issue work orders (all trains), depart
all work orders, complete all work orders, and update all work
orders, using the following computer functions: WOIS, WOTD,
WOCO, WOAW, WOWI, WOTR, and since transferring to
Jacksonville, WOCA and WOAY.
Form 1 Award No. 37228
Page 4 Docket No. CL-37046
04-3-02-3-10
This work is assigned to the clerical employees and was transferred
to Jacksonville, FL under the Customer Service Center Agreement."
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.
AWARD
Claim denied.
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 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