Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28213
THIRD DIVISION Docket No. MW-27833
89-3-87-3-341
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned outside forces to mow weeds beginning April 25, 1986.

(2) As a consequence of the aforesaid violation, Messrs. L. Flores and J. E. Young shall each be allowed eight (8) hours of pay at the tractor mower operator's appropriate rate (straight time or overtime) for each work day and holiday worked by outside forces beginning April 25, 1986, continuing until the claimants are assigned as tractor mower operators with seniority as such dating from April 25, 1986."

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.



Beginning April 25, 1986, Carrier assigned grass cutting work in its passenger terminal area to an outside contractor who used two employees to do the work.




Form 1 Award No. 28213
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On April 9, 1986, the parties discussed the matter and Carrier notified the Organization it was going ahead with its plan.

On March 13, 1986, Carrier had advertised two Tractor Mower Operator positions, located at the Terminal. When these positions were filled the members of the Organization were assigned that mowing work.







Rule 32, Rates of Pay, establishes a wage rate for the category Mower Operator.









The Organization argues the work is reserved to it by Rules 1 and 32 and Carrier's notice is evidence of its recognition of that fact. Further, as the work is reserved to it, the Organization states contract work performed in the past is of no consequence. However as this Board held in Third Division Award 25370:


Form 1 Award No. 28213
Page 3 Docket No. MW-27833
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In that same Award we held a similar Scope Rule to be general in nature. We have also held Rules which protect rates of pay differ from:



The Organization also argues that where there is evidence the work has been done in the past by the claiming organization, proof of exclusivity is not necessary, contending such proof is almost impossible to obtain. Finally, the Organization ta between contending crafts and is of no moment in contracting out situations. In response, we can only say we have been referred to no authority in support of these positions and we believe precedent is to the contrary.

We hold the Scope Rule here is general. Accordingly, in order to prevail the Organization must establish historic exclusivity. This it did not do. Therefore the Claim must be denied.



        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        Nancy J. r - Executive Secretary


Dated at Chicago, Illinois, this 4th day of December 1989.

LABOR MEMBER'S DISSENT

TO

AWARD 28213 - DOCKET MW-27833

(Referee John E. Cloney)


To say that the Majority used circuitous reasoning to find a way to deny this claim is an understatement. Not only was the logic behind the decision flawed, it was based upon an argument raised at the Board level. Moreover, it perpetuates a myth that allows the Carrier to circumvent collective bargaining agreemen
    In the last two paragraphs of the Award, the Majority held that:


        "The Organization also argues that where there is evidence the work has been done in the past by claiming organization, proof of exclusivity is not necessary, contending such proof is almost impossible to obtain. Finally, the Organization takes the position exclusivity is of importance only between contending cr is of no moment in contracting out situations. In response, we can only say we have been referred to no authority in support of these positions and we believe precedent is to the contrary.


        We hold the Scope Rule here is general. Accordingly, in order to prevail the Organization must e


Notwithstanding the fact the Carrier did not raise the exclusivity issue during the handling of this dispute on the property, the exclusivity myth has been again erroneously applied to a contracting out of work case. Without reciting in depth the often held Board principle that the exclusivity doctrine applies to di different classes and crafts of the Carrier's own employes rather than disputes involving outside contractors, I must strenuously object to the Majority's finding of no authority was presented in support of that position Understandably, since no argument concerning exclusivity was raised during
Labor Member's Dissent Award 28213

the on-property handling, no argument or precedent was presented in Organization's Ex Parte Subm authority to support the argument. See Third Division Awards 13236, 13237, 14121, 27012 and 27014 which were presented in their entirety to the Referee during oral argument.

    Third Division Award 25934 held:


        "Further, the Board held that the Organization does not here carry the burden of demonstrating exclusivity because that doctrine is not applicable situations where work is contracted to an outside contractor. See, e.g., Third Division Award 23217 (citing Award 13236, which held that 'The exclusivity doctrine applies when the issue is whether Carrier has the right to assign work to different crafts and classes of its employees - not to outsiders.').


        The foregoing does not mean that the Organization carries no burden to show entitlement to the work; rather, as stated in Special Board of Adjustment of the BN/BRAC Agreement, Award 113:


            'The Organization must demonstrate unilateral removal and assignment to strangers to the contract of a significant portion of that work which actually was performed as of (the effective date of the rule) by positions listed . . ."'


It is only too apparent that the Majority chose to ignore the authority presented and at this late date attempts to redefine a precedent already established. Moreover, based on the Majority's reasoning here, the Agreement between the Parties is to this claim being filed the Carrier bulletined and assigned two Maintenance of Way employes to per brought on the property because the Carrier allegedly did not have sufficient equipment to complete Labor Member's Dissent Award 28213

presupposes any argument that the work was not Scope covered. Certainly the Parties to the Agreement entered into same realizing that work would be assigned to Maintenance of Way employes and recognition thereof was Carrier's regular assignment of dispute. The Majority's narrow interpretation of whether a scope rule is general or not ignores the Scope of an agreement which must embody the work customarily and traditionally performed by Carrier's employes. Such was clearly the Parties intent and conception when the Agreement was made. I, therefore, dissent.

                            D. D.\ Bartholomay, Lab`hLr Member


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