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.
This is a contracting out case which turns on the issue of whether of not the tracks on which the work was performed by the contractor was under the control of Carrier or leased to another enterprise at the time that the disputed work was performed. Carrier, from the outset, maintained that the track was leased, and while it refused to furnish the organization with a copy of the lease because of confidentiality considerations it did make a copy Form 1 Award No. 29515
available for inspection by the Organization. The Organization did not avail itself of the inspection opportunity.
The failure of the Organization to take advantage of the opportunity to inspect the lease flaws its argument that the trackage on which the contractor worked was under the control of Carrier. Accordingly, in these circumstances the Board must accept Carrier's position as correct.
This award is erroneous and inconsistent with the precedent of this Board.
The premise of this Claim was quite simple and uncomplicated. The Organization contended that the Carrier contracted out track work belonging to the employes represented by BMWE. The Carrier contended that the track was leased. The organization requested a copy of the lease and the Carrier flatly refused to supply it. That constituted the handling of this dispute on the property.
On January 31, 1990, the Organization submitted a letter of intent to the Third Division which closed the file. Under date of February 13, 1990, the Carrier allegedly submitted another letter to the General Chairman which indicated that a copy of the alleged lease would be available at the Carrier's headquarters for his examination should he so desire. The organization, in its letter of objection, properly pointed out that the letter was not part of the handling of this dispute and not properly before the Board for consideration. Moreover, the offer made in the letter was not made during the handling on the property.
While I have only been a Board Member for a little over ten years, the Labor Members that initiated me had been here for a much longer period of time and were quite emphatic about the principles established here including the exclusion of new material from the Board's consideration. The Majority here deemed it appropriate to consider new argument and, by doing so, violated the precedent of the NRAB. Hence, this award is erroneous and of no precedential value.