Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37840
Docket No. CL-37097
06-3-02-3-54
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:
"Claim of the System Committee of the Union that:
(Carrier File 6(01-0122)
(TCU File 1.2556(18)SCL)
1. Carrier violated the Agreement on the dates noted in each
claim, when it allowed the on-duty Yardmasters (as specifically
named in each claim) at Corbin, Kentucky, to complete
switchlists resulting in the adjustment of the Yard inventory at
Corbin, Kentucky. This was done in lieu of allowing Clerk H.
F. Cole to perform this work at the Customer Service Center at
Jacksonville, Florida.
2. Carrier shall now be required to compensate Clerk Cole, ID
182234, eight (8) hours' pay at time and one-half his current
rate of $147.14 for the above violation.
3. Carrier shall also be required to make available their records
to verify this violation.
Form 1 Award No. 37840
Page 2 Docket No. CL-37097
06-3-02-3-54
(Carrier File 6(01-0341)
(TCU File 1.2625(18)SCL)
1. Carrier violated the Agreement on October 5, 6, 7, 14 and 17,
2000, when it allowed the on-duty Yardmaster at Corbin,
Kentucky, to complete the switchlists, as noted in each claim,
resulting in the adjustment of the Yard inventory at Corbin,
Kentucky. This was done in lieu of allowing Clerk L. D. Lynn
to perform this work at the Customer Service Center at
Jacksonville, Florida.
2. Carrier shall now be required to compensate Clerk Lynn, ID
239361, eight (8) hours at time and one-half her current rate of
$134.19, plus any additional wage or daily increases, for the
above violation.
3. Carrier shall also be required to make available its records to
verify this violation.
(Carrier File 6(01-0342)
(TCU File 1.2624(18)SCL)
1. Carrier violated the Agreement on October 6, 8, 11, 17, 20, 21,
23, 25, 28 and 29, 2000, when it allowed the on-duty
Yardmaster at Corbin, Kentucky, to complete the switchlists,
as noted in each claim, resulting in the adjustment of the Yard
inventory at Corbin, Kentucky. This was done in lieu of
allowing Clerk H. F. Cole to perform this work at the
Customer Service Center at Jacksonville, Florida.
2. Carrier shall now be required to compensate Clerk Cole, ID
182234, eight (8) hours at time and one-half his current rate of
$147.14, plus any additional wage or daily increases, for the
above violation.
3. Carrier shall also be required to make available its records to
verify this violation.
Form 1 Award No. 37840
Page 3 Docket No. CL-37097
06-3-02-3-54
(Carrier File 6(01-0343)
(TCU File 1.2623(18)SCL)
1. Carrier violated the Agreement on various dates, as noted in
each claim, when it allowed the on-duty Yardmaster at Corbin,
Kentucky, to complete Switchlists, as specifically noted in each
claim. This was done in lieu of allowing Clerk L. D. Lynn to
perform this work at the Customer Service Center at
Jacksonville, Florida.
2. Carrier shall now be required to compensate Clerk Lynn, ID
239361, eight (8) hours at time and one-half her current rate of
$134.19, plus any additional wage or daily increases, for the
above violation.
3. Carrier shall also be required to make available its records to
verify this violation.
(Carrier File 6(01-0338)
(TCU File 1.2628(18)SCL)
1. Carrier violated the Agreement on various dates, as noted in
each claim, when it allowed the on-duty Yardmaster at Corbin,
Kentucky, to complete the switchlists, as noted in each claim,
resulting in the adjustment of the Yard inventory at Corbin,
Kentucky. This was done in lieu of allowing Clerk P. V. Wilson
to perform this work at the Customer Service Center at
Jacksonville, Florida.
2. Carrier shall now be required to compensate Clerk Wilson, ID
521506, eight (8) hours at time and one-half her current rate of
$147.14, plus any additional wage or daily increases, for the
above violation.
3. Carrier shall also be required to make available its records to
verify this violation.
Form 1 Award No. 37840
Page 4 Docket No. CL-37097
06-3-02-3-54
(Carrier File 6(01-0339)
(TCU File 1.2627(18)SCL)
1. Carrier violated the Agreement on October 3, 4, 5, 7 and 8,
2000, when it allowed the on-duty Yardmaster at Corbin,
Kentucky, to complete the switchHsts, as noted in each claim,
resulting in the adjustment of the Yard inventory at Corbin,
Kentucky. This was done in lieu of allowing Clerk P. V. Wilson
to perform this work at the Customer Service Center at
Jacksonville, Florida.
2. Carrier shall now be required to compensate Clerk Wilson, ID
521506, eight (8) hours at time and one-half her current rate of
$147.14, plus any additional wage or daily increases, for the
above violation.
3. Carrier shall also be required to make available its records to
verify this violation.
(Carrier File 6(01-0340)
(TCU File 1.2626(18)SCL)
1. Carrier violated the Agreement on November 2, 3 and 4, 2001,
when it allowed the on-duty Yardmaster at Corbin, Kentucky,
to complete the switchlists, as noted in each claim, resulting in
the adjustment of the Yard inventory at Corbin, Kentucky.
This was done in lieu of allowing Clerk H. F. Cole to perform
this work at the Customer Service Center at Jacksonville,
Florida.
2. Carrier shall now be required to compensate Clerk Cole, ID
182234, eight (8) hours at time and one-half his current rate of
$147.14, plus any additional wage or daily increases, for the
above violation.
3. Carrier shall also be required to make available its records to
verify this violation."
Form 1 Award No. 37840
Page 5 Docket No. CL-37097
06-3-02-3-54
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 alleges that the Carrier assigned
Yardmasters at Corbin, Kentucky, to complete switch lists rather than assigning
that work to a Customer Service Representative ("CSR") at the Customer Service
Center ("CSC") in Jacksonville, Florida.
The background for this claim is set forth in Third Division Awards 37227
and 37760.
As more fully set forth in Third Division Award 37760, the Board has
jurisdiction to resolve this claim.
The record in this case shows that the disputed work: (1) was performed by
someone other than a CSR at the CSC; (2) was performed by a Clerk at Corbin,
Kentucky, prior to the 1991 Implementing Agreement; and (3) was performed by a
CSR at the CSC after the 1991 Implementing Agreement took effect. Under the
Form 1 Award No. 37840
Page 6 Docket No. CL-37097
06-3-02-3-54
three-part test set forth in Third Division Award 37227, the Organization has shown
that the work was transferred from Corbin to the CSC under the terms of the 1991
Implementing Agreement and was later improperly performed by someone other
than a CSR at the CSC in violation of the parties' Collective Bargaining
Agreements.
The record in this case sufficiently shows that the disputed work was
performed at Corbin. We make mention of that because of other disputes
concerning work performed at Patio, Kentucky, which the Organization has argued
is work that is really performed at Corbin. See Third Division Award 37761 where
we denied the Organization's claims because the evidence in that case did not show
that the work was performed at Patio:
"The Organization's argument that the work was actually
performed at Corbin, Kentucky, does not change the result. The
three-part test in Third Division Award 37227 requires that the
Organization make the appropriate showings at Patio. The
Organization has not done so."
See also, Third Division Award 37836 where the Organization was also
unable to demonstrate that the claimed work was improperly performed at the
specific location in dispute:
"This record lacks the specific required factual showings necessary
for the Board to find that the Organization carried its burden under
the three-part test set forth in Third Division Award 37227.
Fairburn, Georgia, is an intermodal ramp located approximately 20
miles from Atlanta and is not listed in the October 25, 1990 transfer
notice. Further, the statements offered by the TCU-represented
employees do not specifically demonstrate that the disputed work
ryas performed by Clerks at Fairburn prior to the 1991
Implementing Agreement.
In light of the above, the Organization's assertions that Fairburn is
part of the Atlanta Terminal (relying upon its listing on the CSX
Intermodal website) or covered by the 1994 Agreement are
Page 7 Docket No. CL-37097
insufficient to offset the lack of necessary evidence to meet the threepart test."
While the Organization did not meet its burden in the above prior Awards -
particularly Third Division Award 37761 involving Patio and Corbin - in this case,
we are satisfied that the necessary showings have been made for Corbin.
Under the rationale stated in Third Division Award 37227, these claims shall
be sustained at the $15.00 requirement.
AWARD
Claim sustained in accordance with the Findings.
ORDER
i
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 1st day of August 2006.
CARRIER MEMBERS' DISSENT
THIRD DIVISION AWARDS 37836, 37837, 37838, 37839, 37840
DOCKETS CL-37040, CL-37060, CL-37079, CIr37084, CL-37097
(Referee Edwin H. Benn)
These Awards involve the performance of various computer functions, including
adjusting yard inventory, at field locations by Clerks and/or Yardmasters.
Awards 37836 and 37837 denied the claims presented therein. The claims that
culminated in Awards 37838, 37839 and 37840 were sustained in accordance with the
Findings. Although two of the five Awards decided the involved claims in favor of the
Carrier, we nevertheless dissent on the ground that the Board lacks the subject matter
jurisdiction to decide any of these claims. For the sake of brevity, our Dissentto Third
Division Awards 37760 through 37765 is incorporated herein by reference.
tee. .e
Martin W. Fingerhut
Bjarne R. Henderson
16" A -B""
John P. Lange
August 7, 2006