YARDMASTER DEPARTMENT AWARDS

MERGER CASES NOT PROPERLY BEFORE ADJUSTMENT BOARD WHEN AGREEMENT CONTAINS SPECIFIC PROVISIONS REQUIRING ARBITRATION TO SETTLE DISPUTES (46)

AWARD # REFEREE RAILROAD
First Division Award 24543 Richter Soo Line Railroad
First Division Award 24544 Richter Soo Line Railroad
Second Division Award 7353 Franden Norfolk and Western
Second Division Award 12337 Muessig CSX Transportation (SCL)
Second Division Award 12569 Muessig Burlington Northern
Third Division Award 20764 Lieberman Penn Central
Third Division Award 29317 Lieberman CSX Transportation (C&O)
Third Division Award 29660 McAllister CSX Transportation
Fourth Division Award 4219 McAllister Baltimore & Ohio
Fourth Division Award 4293 Muessig Southern Railway

Second Division Award No. 7353 (Franden)

"The carrier has raised many issues in defense but at the outset challenges the forum to which the matter has been appealed. It is the carrier's contention that the arbitration provisions of the January 10, 1962, agreement are binding and that this board is without jurisdiction to hear the matter.

"Various divisions of this board, along with certain public law boards, have properly held that when merger protection agreements such as those involved herein provide a mechanism for the appeal of disputes relating to the interpretation or application of said agreements this board is not the proper form of appeal.

"The word 'may' as used in the January 10, 1962, agreement is permissive only as to the right to appeal and not as to forum. See awards 20764, 19055 (3rd division) 6641 and 6534 (2nd division) and award #34, PL Board 1790 among others."

Third Division Award No. 20764 (Lieberman)

". . . With respect to the alleged violation of the Merger Protective Agreement this Board has in a number of recent Awards taken the position repeatedly that it has no authority to inject itself into disputes involving Merger Protective Agreements wherein there are arbitration procedures established (see for example Awards 20289, 19950 and 19926). In this dispute, we reaffirm that position."

Second Division Award No. 12337 (Muessig)

"We agree with the Carrier in this case that the Board does not have jurisdiction. In its simplist (sic) terms, a Carrier employee was assisted by two C&O employees while working on RF&P property. In effect, the work constituted a part of an overall joint action by two Carriers on a `coordination' as defined in the Washington Job Protection Agreement. Accordingly, following a long-line of precedent that the Board will not accept jurisdiction over those disputes which involve a specific agreement which contains its own dispute resolution process, we must dismiss the claim."

Fourth Division Award No. 4219 (McAllister)

". . . As the controlling instrument, the New York Dock Conditions contains its own procedures for the resolution of disputes arising therefrom. Article I, Section 11, Arbitration of Disputes, designates an Arbitration Committee to whom all disputes or controversy with respect to interpretation, application, or enforcement may be referred. Accordingly, we find this Board lacks the Jurisdiction to resolve a dispute arising from the New York Dock Conditions Agreement, which mandates the decision of the Arbitration Committee shall be final and binding."

Third Division Award No. 29317 (Lieberman)

"An examination of the January 8, 1988 Agreement reveals that it incorporates specifically the protective conditions set forth in the New York Dock Conditions; moreover, the implementing Agreement itself was entered into pursuant to the rulings of the Interstate Commerce Commission in various Finance Dockets which incorporated the New York Dock conditions. The New York Dock Conditions provide for a specific mechanism for the resolution of disputes, namely Article I, Section 11. As this Board has held in the past (see for example Fourth Division Awards 4219 and 4293) we lack jurisdiction to resolve disputes arising from the New York Dock conditions. Also in point is Award 1 of Special Board of Adjustment No. 1057, involving the same parties. In this dispute the jurisdictional question is even more evident since the sole Agreement relied upon was the implementing Agreement including New York Dock Conditions. Accordingly, the dispute herein must be dismissed."

Fourth Division Award No. 4293 (Muessig)

"The Board finds, under the facts and circumstances here, that it lacks jurisdiction. Leading to this conclusion, we particularly point to the Claimant's original submission to the Carrier, in which he described his claim for benefits as one arising from the New York Dock Condition. Moreover, the Claimant continued to acknowledge in later documents that this claim arose because he `was affected by this merger.'

"Accordingly, the record convincingly shows that the claim was presented as a demand for a benefit resulting from a merger to which the ICC had applied the New York Dock Condition. Therefore, the Board lacks jurisdiction."

First Division Award No. 24543 (Richter)

"…This Board has consistently held that when Agreements have special provision for handling disputes the parties are obligated to follow those procedures…."

First Division Award No. 24544 (Richter)

"The Carrier takes the position that the case is improperly before this Board. It argues that the July 1, 1985, EPA, provides for a separate arbitration procedure to handle disputes arising from the Agreement. Section 13 provides for the manner in which the disputes are to be resolved.

"This Board has consistently dismissed claims when a separate dispute resolution is spelled out in the Agreement. We will do likewise in this case."

Third Division Award No. 29660 (McAllister)

"Notwithstanding, this Board is initially faced with the question of whether it has jurisdiction in this matter. Clearly, analysis of the January 9, 1988, implementing agreement discloses the parties specifically intended to incorporate by reference the protective conditions of New York Dock. Third Division Award 29317 involving the same parties and a like question of jurisdiction states in pertinent part that:

‘The New York Dock conditions provide for a specific mechanism for the resolution of disputes, namely Article 1, Section II.’

"This Board concurs with the findings in Award 29317 and, likewise, holds that we lack jurisdiction to resolve disputes which are governed by New York Dock. See also Award No. 1, Special Board of Adjustment No. 1057 involving the same parties. The above findings require this case be dismissed for lack of jurisdiction."

Second Division Award No. 12569 (Muessig)

"In this dispute, the Claimant seeks entitlement to benefits under the September 25, 1964 Mediation Agreement. He contends that his position was abolished when the Carrier closed its Livingston Shop facilities on February 3, 1986. However, the Board holds that the matter under dispute is reserved to Special Board of Adjustment No. 570. Sections 1 and 8 of Appendix ‘G-1’, Article VI of the September 25, 1964 Agreement provides as follows:

‘Section 1 - Establishment of Shop Craft Special Board of Adjustment -

In accordance with the provisions of the Railway Labor Act, as amended, a Shop Craft Special Board of Adjustment hereinafter referred to as "Board," is hereby established for the purpose of adjusting and deciding disputes which may arise under Article I, Employee Protection, and Article II, Subcontracting, of this agreement. The parties agree that such disputes are not subject to Section 3, Second, of the Railway Labor Act, as amended.’

‘Section 8 - Jurisdiction of Board -

The Board shall have exclusive jurisdiction over disputes between the parties growing out of grievances concerning the interpretation or application of Article I, Employee Protection and Article II, Subcontracting,’

"Accordingly, these provisions provide for the exclusive jurisdiction over Shop Craft disputes before the Special Board of Adjustment No. 570. That Board handles all disputes involving the interpretation or application of Article I, Employee Protection. Resolution of dispute concerning protective entitlements are exclusively within the jurisdiction of the tribunal formed under the provisions of the September 25, 1964 Mediation Agreement. The claim is therefore dismissed because this Board has no jurisdiction over this case."


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Last modified: April 29, 2005