Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27014
THIRD DIVISION Docket No. MW-26642
88-3-85-3-390
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when outside forces were used to cut
brush on the Youngstown Branch beginning June 7, 1983 (System Docket CR-796).
(2) The agreement was further violated when the Carrier did not give
the General Chairman prior written notification of its plan to assign said
work to outside forces.
(3) Because of the aforesaid violations:
'I am requesting you allow this claim, making continuous payments until this work is
stopped, to the following furloughed
employees in seniority order since June 7,
1983: B. J. Meredith, Employee Number
253683 at Vehicle Operator Rate of pay $10.82
per hour; D. L. Standy, Employee Number
250631 and D. R. Pinney, Employee Number
230092 both at Trackman Operator Rate of pay
$9.84 per hour. Also since June 15, 1983 M.
A. Fetters, Employee Number 266855 at Trackman Operator Rate of pay $9.84 per hour.'"
FINDINGS:
The Third 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 employes 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 waived right of appearance at hearing thereon.
Form 1 Award No. 27014
Page 2 Docket No. !iW-26642
88-3-85-3-390
Except as to location and the extent of work involved, this claim
closely parallels the claim considered in Third Division Award 27012. The
Board reaches the same conclusion as in that Award, which is incorporated
herein by reference.
The Board will sustain the claim as stated in Paragraphs (2) and (3)
of the claim. With this, it is unnecessary to rule on the contention in
Paragraph (1) of the claim.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. e r - Executive Secretary
Dated at Chicago, Illinois, this 25th day of April 1988.
CARRIER MEMBERS' DISSENT
TO
AWARD NOS. 27012, 2;014; DOCKET NOS. MW-26579, ~IW-26642
(Referee Marx)
The Ma]orit_ ns committed two grievous errors
i,^,
the
handling of these c-ases.
First, they ha-:e =m;)letely overlooked or failed to give any
credence to the dec_sicn rendered by the Third Division in Award
26676 which involves the same parties, the same agreement and the
same dispute, i.e., crush cutting under a signal system. In
Award
26676,
the .'!a~ority correctly denied the organization's
claim, stating:
"The Organization has produced no evidence
appearing in the record of this dispute which supports
its contentions that the work in question is the type
of work reserved to Maintenance of Way Employes, either
by practice or agreement language."
In Awards
27012
and
27014,
while recognizing that the
dispute involved pole line brush cutting and inviting the
Brotherhood of Railroad Signalmen as a Third Party, the Majority
nevertheless somehow decided that the agreement was violated when
the Organization was not given advance notice of the contracting
although not finding a violation of the agreement because a
contractor was used. An extension of this convoluted decision
would require an advance notice to the Organization even when
Signalmen are used to cut brush under pole lines, an item of work
clearly spelled out in that Agreement.
Certainly, the proper and logical path to follow was that
already set by Award
26676.
Having gone astray, the Majority has
merely muddied the waters by these awards.
Dissent to Award Nos. 2%012, 2 014
Page 2
Secondly, and more importantly, the ^Iajorit;· has decided
notice is required sn if the work involved is not w=thin the
scope of the Agreeme7t siT.p1;· because the represented employees
have participated ir~ :;rah --uttinq in the past. However, the
decision ignores the =pct that brush cutting is not mentioned in
the Scope Rule. The .'Iajority further overlooks the fact that
brush cutting has been performed historically by other crafts and
by contractors, throughout the property without prior notice and
without any protest.
For these reasons, it is necessary that we dissent.
/a4;
M. VYINILPRHUIV
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off;
M. C. LESNIK
P. V. VARGA
. E. YOST