Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37236
Docket No. CL-37111
04-3-02-3-85
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(00-12!55) TCU File 1.2364(18)SCL
1. Carrier violated the Agreement(s) on the dates noted in each claim,
when it allowed the Yardmaster/Clerk at Flomaton, Alabama, to
make Yard Inventory Adjustments (YSIA) on train/track/cut at
Flomaton, Alabama. 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 less
any compensation paid."
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.
Form I Award No. 37236
Page 2 Docket No. CL-37111
04-3-02-3-85
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 that Yardmasters and/or Clerks performed
the YSIA function at Flomaton, Alabama, rather than that work being performed by
Customer Service Representatives (CSRs) at the Customer Service Center (CSC) in
Jacksonville, Florida.
This is the same dispute decided by the Board in Third Division Award 37235
where, for reasons discussed in Third Division Award 37227 we sustained the claims.
Under the rationale stated in Third Division Award 37227, this claim shall be
sustained at the $15.00 requirement.
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 27th day of October 2004.
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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. Bennl
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 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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PAGE 2 of 3
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 1, Section 4, require that
the UTU-Yardmasters Department be a party to au 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. A/lost importantly, these Awards exceed the jurisdiction of
the Board.
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CARRIER MEMBERS' DISSENT TO
THIRD DIVISION AWARDS 37227-37236
PAGE 3 of 3
We dissent.
Michael C. Lesnilt
Martin W. Fingei'tut
)fjbrne.R. Henderson
olih P. LangN