Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37234
Docket No. CL-37087
04-3-02-3-48
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(01-0063) TCU File 1.2534(18)SCL
1. Carrier violated the Agreement(s) on the dates noted in each
claim, when it allowed Yardmasters and Clerks (named in each
claim) to make Yard Inventory Adjustments (YSIA) on
train/track/cut at Louisville, Kentucky. This violation was
performed in lieu of allowing this work to be performed by
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 the
applicable rate of $147.14 or the punitive rate, if applicable, for
the above violation.
Carrier File 6(01-0066) TCU File 1.2531(18)SCL
1. Carrier violated the Agreement(s) on the dates noted in each
claim, when it allowed Yardmasters (named in each claim) to
make Yard Inventory Adjustments (YSIA) on train/track/cut
at 000003. This violation was performed in lieu of allowing this
work to be performed by Clerical employes in the Customer
Service Center at Jacksonville, Florida.
Form 1 Award No. 37234
VW
Page 2 Docket No. CL-37087
04-3-02-3-48
2. Carrier shall now compensate the Senior Available Employe,
extra or unassigned in preference, eight (8) hours at the
applicable rate of $147.14 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:
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 these claims, the Organization protests that someone other than a
Customer Service Representative (CSR) at the Customer Service Center (CSC) in
Jacksonville, Florida, performed the YSIA function at Louisville, Kentucky.
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: r'
Form 1 Award No. 37234
Page 3 Docket No. CL-37087
04-3-02-3-48
"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
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."
Under those standards, this claim has merit.
Additionally, we addressed the Louisville location in Third Division Award
37229 and found:
".
. . Louisville was one of the locations covered by the 1991
Implementing Agreement that transferred work from the field to the
CSC. See Attachment A to that Agreement. As shown by
statements provided by Clerks, the function YSBO was performed
by Clerks at Louisville before the CSC was established and by CSRs
after the work was transferred to the CSC. (TCIU Exhibit 24 at 58,
167, 179 and 275; Clerks Huebel, Jackson, Killian and Wright state
that they performed the YSBO function at Louisville and at the
CSC.) The standards discussed in Third Division Award 37227 have
been shown by the Organization."
That discussion also applies to the YSIA function involved in this dispute.
Under the rationale stated in Third Division Award 37227, this claim shall
similarly be sustained at the $15.00 requirement.
Form 1 Award No. 37234 .r·
Page 4 Docket No. CL-37087
04-3-02-3-48
Public Law Board No. 5530, Award 11 which was cited by the Carrier does
not change the result. As we stated in Third Division Award 37227, the Awards
decided by Public Law Board No. 5782 are not palpably in error and, for purposes
of stability, we have deferred to those Awards.
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
r
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 27th day of October 2004.
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. Benn)
The instant Third Division Award 37227 and companion Awards dealt
with tile 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 tile
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 all Implementing Agreement reached pursuant
to, and in satisfaction of, the New York Dock employee protective conditions
of the Interstate Commerce 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
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of
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Although the participants (lid 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
TAW
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. Lesnilc
.w~ 4'
Martin W. Fingehut
Ijbrne R. Henderson
of ht P. Langd/