SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Electrical Workers)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the current agreement the Carrier improperly contracted out the repairing, rewinding and rebuilding of 16 complete traction motors, including armatures and the rebuilding of 10 traction motor field coils during the period of December 2 to 30, 1959, to be performed by employes of contractors not subject to the current agreement.
2. That, accordingly, the Carrier be ordered to compensate the following named Claimants, at. penalty rate, for the number of hours required to perform the above-mentioned work according to electric shop records:
just repaired traction motors or equipment, or, take advantage of the manufacturer's service, such as the unit exchange basis, to secure remanufactured, modernized, improved, upgraded and warranted traction motors, armatures and field coils, and a type of motor, armature or field coil that only the manufacturer can produce and which the manufacturer is constantly striving to improve and modernize.
The inherent right of management to manage must permit managing officers to choose between available methods of furthering the purpose of the carrier. If such method is one ordinarily pursued by management in the industry, it should be considered as a proper exercise of managerial judgment. In the instant case, it was the carrier's judgment that the proper and sensible thing to do was to take advantage of the unit exchange service offered by the manufacturer and secure from them complete, modernized, upgraded and warranted traction motors and field coils rather than attempt to repair or rebuild worn and antiquated ones in kind which would not give us the advantage of remanufactured, modernized, converted and warranted traction motors, armatures and field coils.
As previously stated, the receipt of the remanufactured, modernized, improved, upgraded and warranted complete traction motors, armatures and field coils received on unit exchange purchase order for older equipment bears more resemblance to the purchase of new ones than to the maintenance and rebuilding of old traction motors.
We submit, without relinquishing our position as above, that, even if claim had merit, which we deny, there is no showing of loss or damage to any individual. It is also our position, as upheld by this and other Divisions of the Adjustment Board, that there can be no penalty, much less at time and onehalf rate, for work not performed.
The employes' organization in this case is in agreement with the carrier's statement that this equipment was sent to the above company on a unit exchange basis, as per second paragraph of the General Chairman's letter of November 3, 1960, reading:
The carrier and employes, therefore, are in agreement that these motors were handled on a unit exchange basis and, therefore, this same question and same type of case from this property has been before your Board on previous occasions for hearing in Awards 3228, 3229, 3230, 3231, 3232, and 3233 (Referee Ferguson); 3269 (Referee Hornbeck); 3585, 3586 (Referee Carey); and 3635 (Referee Watrous), all of which were rendered in favor of this carrier. Further, Awards 2377, 2922, 3158, 3184 and 3185 have also upheld carriers in similar cases.
On basis of the facts and circumstances recited in the foregoing, we ,contend there was no violation of the employes' agreement.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
dispute are respectively carrier and employe 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.
The instant claim involves the same labor agreement and essentially the same factual situation as those discussed in our Award 3994. What we have said in that Award with respect to the use of the "Unit Exchange Service" is also applicable to the claim with which we are here concerned.
Accordingly, we hold that the instant claim is without merit for the reasons stated in our aforementioned Award.
DISSENT OF LABOR MEMBERS TO AWARD NUMBERS
3994, 3995, 3996, 3997, 3998
This Division in its Awards 1943, 3457 and 3720 found that the Carrier violated the Agreement when it contracted the rewinding, repairing and rebuilding of five traction motors and fifty-seven armatures to the Electro-Motive Company and National Electric Coil Division of McGraw-Edison Company.
In these disputes without any change in the Agreement this same Carrier contracted the rewinding, repairing and rebuilding on one-hundred-and-four traction motors, two generators and two armatures to the Electro-Motive Company and National Electric Coil Division of McGraw-Edison Company. Therefore, the Carrier violated the Agreement.
The majority in Awards 3994, 3995, 3996, 3997 and 3998 failed to comply with the provisions of the current Agreement that has been interpreted by this Board in Awards 1865, 1866, 1943, 1952, 2841, 3235, 3456, 3457, 3556, 3633 and 3720, resulting in the Employes doing the same work and covered by the same Agreement, not being given equal treatment or equal protection under the law. Therefore, the majority's awards in these claims are in error and we are constrained to dissent.