Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 39282
 Docket No. SG-38944
 08-3-NRAB-00003-050409
 (05-3-409)

The Third Division consisted of the regular members and in addition Referee Joyce M. Klein when award was rendered.


(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

STATEMENT OF CLAIM:



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.

Form 1 Award No. 39282
 Page 2 Docket No. SG-38944




Maintainer J. B. Butler took vacation from June 7 through June 11, 2004 from his position on one of the four territories comprising the former GWWR. None of the Claimants who held positions as Signal Maintainers on the remaining three territories were assigned as vacation relief. Instead, a Signal Maintainer from the KCS, who does not hold seniority rights on the GWWR and is not covered by that Agreement, was assigned to fill the vacancy left by Butler's vacation.


The Organization asserts that the Claimants were entitled to the GWWR vacation relief work citing the Scope Rule and seniority provisions of the Agreement. The Carrier acknowledges that it assigned a Signal Maintainer from the KCS, but asserts that it needed to do so under 49 CFR 234.207, which requires that railroads respond to trouble calls that could effect public safety and make repairs and replacements "without undue delay." The Organization points out that this regulation was never at issue with previous vacation and weekend coverage and was not at issue when the position was vacant for more than three months when the previous incumbent was terminated. The Carrier explains that all three Claimants were fully employed and worked overtime during the week in question. According to the Carrier, using one of the Claimants to fill the slot left by the vacation absence would have resulted in a similar problem for that Signal Maintainer's territory.


There is little support for the Carrier's concern with 49 CFR 234.207. It is undisputed that in the past, vacation and weekend coverage, as well as a period of prolonged vacancy, were assigned to GWWR Signal Maintainers without running afoul of the need to make repairs and replacements "without undue delay." It is similarly undisputed that the vacation relief assignment was given to a Signal Maintainer who did not hold a position or seniority on GWWR territory without the concurrence of the Organization.


There are a number of Awards providing that "work within a specific seniority district must be reserved for employees holding seniority in that district . . . ." See Third Division Award 30797. That the Claimants were fully employed in this case does not negate the fact that they lost work opportunities within the seniority district during the time period at issue and are entitled to relief.

Form 1 Award No. 39282
 Page 3 Docket No. SG-38944
 08-3-NRAB-00003-050409
 (05-3-409)

The Claimants are entitled to 40 hours at the pro rata rate of pay to be divided equally.




      Claim sustained.


                        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 21st day of July 2008.
 Brotherhood of Railroad SiLnalman's Dissent to Third
        Division Awards 39361, 39362 and 39282


                Referee Joyce M. Klein


Future Railway Labor Act (RLA) arbitration boards should disregard all three of these Awards.

 The contract claims in each of these cases arose under separate and distinct collective bargaining agreements (CBA). In all three Awards the National Railroad Adjustment Board (the Board) along with Referee Klein exceeded its jurisdiction by failing to interpret the applicable CBA. Instead, the Board ruled that the CBA was subject to being overridden by federal regulation or by language in a CBA that covers employees who work for other railroad companies.

 The Board's failure to interpret the applicable CBA, and its misapplication of a federal regulation had the purpose and effect of amending the applicable CBA. The Board does not have jurisdiction to amend CBAs. The Awards thereby violated the RLA. The Awards should be vacated on judicial review or, if not, should be ignored by future RLA Boards.

              Third Division Award 39361


A Kansas City Southern (KCS) railroad signalman represented by the Brotherhood of Railroad Signalmen (BRS) fled a claim against KCS under 1
 the CBA between BRS and KCS. The claim concerned repair of a malfunctioning signal device located on the KCS. The repair had been performed by an employee of another railroad, Gateway Western Railway (GWR).

 It was and is undisputed that signal work and signal workers on the KCS are covered by the BRS-KCS Agreement; and that signal work and signal workers on the GWR are covered by the CBA between BRS and GWR. Signal employees working under one railroad's CBA have no right to perform work on another railroad. It is also undisputed that no CBA, and no federal law or regulation, authorized or required the KCS to violate the BRSKCS Agreement by assigning work to employees from another railroad.

 Award 39361 purports to hold that the requirements of a federal rail safety regulation (Hours of Service) authorized KCS to violate the BRS-KCS Agreement. However, questions whether the RLA is overridden by another federal law are reserved to the courts, not the Board. For example, it took a U.S. Supreme Court decision to determine whether railroads could override CBAs when implementing railroad mergers authorized by the Interstate Commerce Commission (Norfolk & Western Railway Co. v. American Train Dispatchers. Assn., 111 S.Ct. 1156 (1991).

 The RLA, 45 U.S.C. § 152 First, requires railroads (and unions) to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to refrain from making changes in existing agreements except under RLA procedures, 45 U.S.C. § 152 Seventh

                          2

and 156. it was beyond the Board's jurisdiction to rule that the federal safety regulation excused KCS from its contractual obligation to use only KCS employees to repair the KCS signal device at issue.

 The Board also exceeded its jurisdiction by ruling (albeit implicitly) that the BRS-GWR Agreement permitted GWR employees to work on the KCS. The majority's decision to treat this case as a seniority district dispute instead of a dispute involving two separate and distinct CBAs is equivalent to combining provisions of these agreements without the parties bargaining for changes. The parties engaged the Board to interpret the BRS-KCS Agreement, not the BRS-GWR Agreement.
              Third Division Award 39362


A KCS signalman represented by the BRS filed a claim against KCS under the BRS-KCS Agreement. The claim concerned repair of a malfunctioning signal device located on the KCS. The repair work had been performed by an employee of another railroad, MidSouth Rail (MSR).

 It was, and is, undisputed that signal work and signal workers on the KCS are covered by the BRS-KCS Agreement; and that signal work and signal workers on the MSR are covered by the CBA between the BRS and MSR. The Board found, and the BRS does not dispute, that the MSR employee had retained seniority rights to bid on KCS positions under certain circumstances. The Board, however, wasn't engaged to interpret the BRS-

                          3

MSR Agreement. Its charge, and the limit of its jurisdiction, was to interpret the BRS-KCS Agreement.
This overreaching by the Board resulted in a finding that the KCS could cross over a MSR worker to handle an individual repair project on the KCS. This is tantamount to, and has the putative effect of, merging the seniority roster on the KCS (as controlled by the BRS-KCS Agreement) with the seniority roster on the MSR. This is nothing, less that amending both CBAs and goes beyond the Board's jurisdiction.
              Third Division Award 39282


The BRS concurs in the result ofthis Award, which sustained a contract claim filed under the BRS-GWR Agreement by three BRS-represented GWR signalmen. The claim concerned the use of an employee of the KCS Railroad to provide vacation relief of a vacationing GWR employee.
The BRS strongly disagrees, however, with the Board's reasoning in arriving at a sustaining award. In this award the Board did not agree with Carrier's hypothetical argument that the KCS employee was needed in case there was trouble and could be used to repair this imaginary trouble in order to comply with a federal safety regulation.

 However, the Board used the same faulty approach it would later use in Award 39361, namely, the erroneous concept that in some cases a carrier might unilaterally override a CBA by invoking a federal safety regulation. In 4
 findmg that such, override was riot permitted in Award 39382, the Board endorsed the idea that under different circumstances a signalman from one railroad might be assigned a work project on another railroad. This amounts to amendment of a CBA by an RLA board, which is beyond the Board's jurisdiction. Soon thereafter, as discussed above, the Board made exactly that mistake in Award 39361.

 Respectfully s miffed,

 C.A. McGra
 International Vice President BRS
 Labor Member, NRAB

 5