The Second Division consisted of the regular members and in
addition Referee Carroll R. Daugherty when award was rendered.
SYSTEM FEDERATION NO. 17, RAILWAY EMPLOYES"
DEPARTMENT, A. F. OF L. - C. 1. O.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this 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 essential facts of record in this case are as follows: (1) On July 31, 1959, carrier formally put into effect its decision to shut down (through sale) its repair shops at Van Nest. (2) Before that date said shops had complete facilities to repair the traction motors involved herein. (3) During May 22-29, 1959, carrier shipped a number of traction motors to the General Electric Company shops at North Bergen, New Jersey. These motors were sold to G. E. on a unit-exchange basis. (4) Some time later carrier purchased on a new-warranty basis, five re-conditioned traction motors from said G. E. facility. Said five motors bore the same serial numbers as five of the motors that had been shipped and sold during May 22-29. (5) There is no evidence that any of the other motors sent by carrier to G. E. on the unit exchange basis were later received back by carrier.
Given these facts, the issue posed by the parties' contentions is whether carrier's use of the unit-exchange-with-new-warranty system with G. E. constituted a contracting-out of work that was reserved to carrier's repair electricians and thereby prohibited under Rules 29, 101, and 123 of the parties' agreement.
On the contracting-out question this Division has ruled against carriers where (1) units were repaired by outside firms and were returned to carriers as recognizable units and (2) carriers had the men, equipment, and parts to, do the work of reconditioning.
On the other hand, this Division has ruled for carriers where (1) the, unit-exchange-with-new-warranty system was in effect between the carriers and outside firms; (2) the units sent in by the carriers were, in effect or actually, scrapped and replaced by more modern, improved units; (3) by implication, the identity of the units was lost in said contractual exchange system; and (4) by further implication, it was not of compelling importance whether the carriers had the men, equipment, and parts to do the reconditioning or improving.
The substance of the second of the above-mentioned group of awards is not essentially at variance with that of the first group. The critical question seems to be whether, under the unit exchange system, a bona fide loss of identity occurs between the units shipped and sold by a carrier to the outside firm and the units shipped and sold in the opposite direction. If the answer is. "yes", then the carrier cannot be judged to have participated in a legalistic subterfuge to defeat the meaning and intent of the labor agreement. If "no",. th carrier must be held to have violated its labor agreement.
Applying this principle to the facts of the instant case, the Division then finds as follows: (1) No one may properly hold that carrier was not within its rights to dispose of its Van Nest shops when and as it did. The 4066-12 644
issue here must therefore be confined to what happened before July 31, 1959. (2) Carrier in its submission admits that it bought back from G. E. five of the traction motors listed by serial number in general chairman De Ritis' letters of July 9 and August 26, 1959, as having been sold to G. E. during May 22-29, 1959. (3) Carrier had the burden in this case of establishing that (a) this particular exchange was purely coincidental; and (b) the five units it sent to G. E. were in effect scrapped and the five it bought were improved, modernized ones. In the Division's opinion these burdens were not sustained in carrier's submissions.
In the light of the findvigs above, the Division is compelled to sustain the instant claim to the extent of the straight-time hours used during the period here involved by G. E. electrical workers at North Bergen on the re-conditioning of the five traction motors whose serial numbers were 7083983, C 7083983, C 0722900, 0 0727011, and CL 7027011. The total straighttime pay for said hours shall be divided among the claimants herein in a manner and in amounts to be decided by the organization that represents them.
We do not agree with the confilicting finding that the Carrier did not violate the agreement when the rewinding, repairing and rebuilding of other traction motors, armatures, fields and generators was contracted to the General Electric Company. This violation results in the employes covered by the same agreement not being given equal treatment or equal protection under the law. We are therefore constrained to dissent from this finding.