Nancy J ver - Executive Secretary

LABOR MEMBER'S DISSENT

TO

AWARD 29535. DOCKET MW-29700

(Referee DiLauro)

The Majority exceeded its jurisdiction and obviously erred in denying this claim about in-track tie treatment work performed outside Jacksonville, Florida, because in doing so it illegally adulterated the crystal clear controlling language of Rule 2. This award is palpably erroneous and should not be considered as precedent.

The Majority, in the fourth paragraph of Award 29535, sets forth the factual circumstances of the dispute as being that:

^*** On October 30, 1989, an outside contractor assigned by the Carrier, the Osmose Company, began performing track maintenance work such as in track tie treatment work beginning at Mile Post 5680.0 on the Wildwood Subdivision. ***" (Emphasis added)

Controlling is Rule 2 which, in pertinent part, reads:

"RULE 2

CONTRACTING

This Agreement requires that all maintenance work in the Maintenance of Way and Structures Department is to be performed by employees subject to this Agreement except it is recognized that, in specific instances, certain work that is to be performed requires special skills not possessed by the employees and the use of special equipment not owned by or available to the Carrier. In such instances, the Chief Engineering Officer and the General Chairman will confer and reach an understanding setting forth the conditions under which the work will be performed."

Plainly, had the Majority read and given common ordinary meaning to the words of Rule 2, the track maintenance work involved was that which was contemplated by the parties when they negotiated the words all maintenance work. Hence, the Carrier was contractually required to assign such work to its employes who were subject to the Schedule Agreement. In this connection, and without getting into a lengthy restatement of our position regarding scope coverage of the track maintenance work in question, it is noteworthy that the instant dispute was "argued" on November 4, 1992, just weeks after an article concerning in-track tie treatment appeared in the September 1992 issue of "Railway Track & Structures" (RT&S) magazine. RT&S is recognized as an authoritative periodical throughout the industry. At Page 39, the RT&S article stated:

"The process of supplemental treatment has long been recognized by the railroad industry as the single moat important maintenance technique to secure additional tie life. ***"

^*** Ties in the southeast, and other high moisture areas, are often affected by decay long before mechanical wear is apparent. ***"

The salient point here is that maintenance of crossties is track maintenance work reserved to the Carrier's Track Subdepartment employes by Rule 2 unless/until express exceptions are shown.

For the Majority's edification, Rule 2 also provides exceptions to the requirement that all main subject to the Agreement, i.e., when special skills not possessed by the employees and the use of special equipment not owned by or available to the Carrier are involved. Those exceptions were where the Carrier belatedly hung its defensive "hat" during the onproperty handling of the dispute followed to deny the claim. The word "belatedly" is significant. Because there was NO dispute that the character of the work involved, i.e., in-track tie maintenance, had historically, traditionally and customarily been assigned to and performed by the Carrier's Maintenance of way forces, ANY special skills and equipment issues were plainly the exceptions contemplated by Rule 2, i.e., topics for good-faith discussions in conference BEFORE the Carrier's decision to contract out such work. For the Majority's edification, the Carrier's presentation of such issues ex post facto are simply EXCUSES to escape monetary liability for its violations of the Agreement. Again, Rule 2's language, clearly and unambiguously controls such instances by its terms which read:

~··· in such instances, the Chief Engineering Officer and the General Chairman will confer and reach an understanding setting forth the conditions under which the work will be performed."

The Majority could not have been faced with more explicit provisions. The word "will" simply man in such instances. Although the Majority remarked in the penultimate paragraph of its findings that no such conference had occurred relative to the track maintenance work in question, it chose to ignore the plain facts and the clear rule. In addition, although directed to Award 28486 involving this Carrier disposing of similar Carrier contentions in the Employes' favor, the Majority chose to ignore what is plain and clear even to those unschooled in Railroad arbitration. Again, Award 28486, held:

"The Carrier maintains the work contracted out did not belong to the organization. The Carrier bases this position on the necessity to use an outside contractor because a patented process was required and the work has always been contracted out. Furthermore, the Carrier argues the work was excepted since special skill and a patented process was involved.

The record clearly establishes the 'work' performed the outside contractor using a patented injection method was roadbed stabilization work. There is no evidence in this record that such work is not normally performed by Maintenance of Way employees.

The argument advanced by the Carrier that this work could only be done by the use of a special patented process somehow exempts the work from the scope of the Agreement and Appendix 'B' is not based upon generally accepted Principles of contract interpretation.

"Herein, the Carrier has attempted to arcrue from a specific exception set forth in Appendix 'B' to a general conclusion that the work does not accrue to Maintenance of Way employees. The 'work' is roadbed stabilization, and there is no evidence all such work is excluded by use of special equipment or a patented process. On the contrary, their utilization is a specific exception which requires the Carrier to discuss the matter with the General Chairman before contracting out such work. -use Third Division Award 25967. The determination to use special equipment and a patented process to perform roadbed stabilization lies with the Carrier. That decision does not alter the fact that roadbed stabilization is work that could be performed by Maint Way employees, but not in this instance because of the special requirements the Carrier imposed. The equipment utilized does not alter the work. Rather. it alters the method of performing the work and clearly falls within the purview of Appendix 'B'." (Emphasis added)

Had the Majority read the above-quoted Award 28486 and applied the well-reasoned principles enunciated therein to the factual circumstances, a sustaining award would have been inevitable. This is stated unequivocally because the factual circumstances considered by Award 28486 are virtu this award, i.e., Award 28486 considered 'patented' roadbed injection maintenance work and this award considered 'patented' crosstie injection maintenance work. However, the applicable controlling contractual language, at least from the Carrier's standpoint, is far more restrictive in the instant case with Rule 2 than in Award 28486 with Appendix 'B'. Notwithstanding, and incomprehensibly, the Majority chose to alter and amend Rule 2's terms "all maintenance work" to mean something other than, less than ALL MAINTENANCE WORK. Of course, the Majority does not have

the authority to alter or amend the language agreed upon by the parties to the Agreement. Hence, the Majority's decision in Award 29535 which failed to draw its essence from the Agreement, is illegal and of no precedential value whatsoever.

Perhaps more significantly, the majority failed in its obligation to serve the purpose of the procedures established by the Railway Labor Act. Instead, its nonsensical findings cast a cloud over the value of the award while leaving the circumstances relative to Rule 2 essentially undecided.

Further evidence that the Majority erred when it arrived at Award 29535 is found in the fact that they considered as precedent, facts and rules which bear little, if any, resemblance to those decided in the subject award. In this connection, the Majority purportedly reviewed the awards cited by both parties and found Award 29185 dispositive and Award 26032 particularly relevant in deciding this dispute. Award 29185 involved the Missouri Pacific Railroad Company and a contracting out of concrete, anchor application and epoxy grouting work was very brief. Although the award concerned agreement rules which did not expressly reserve the work to maintenance of Way employes, its denial centered on that Carrier's proffer of past practice evidence, i.e., two hundred fifty-one (251) instances of contracting similar work over a twenty (20) year period, which went largely undisputed and was acquiesced

to by the Organization. Beyond the name of the outside contractor involved, i.e., ,Osmose", Award 29185 has NO APPARENT SIMILARITY to anything in Award 29535. Likewise, or similarly dissimilar is Award 26032, the opinion of which is a scant seventeen (17) lines but which the Majority nonetheless, found to be both "Particularly relevant" and "a factually similar claim based upon the specialized nature of the work which was contracted out." At this juncture, we are impelled to quote the entire "OPINION OF BOARD:" of Award 26032, which reads:

"This Board is asked to rule on a Time Claim asserting that Carrier contracted out work without agreed Letter of Intent. Within this dispute on the failure of Carrier to utilize furloughed Maintenance of Way Laborers are additional time limit contentions as well as disputes over excessive Claim and improper Claimants.

We have reviewed the record as developed on property and fail to find evidence of a probative nature to support the assertion of a Carrier violation. In the instant case, the weed control work was performed on April 28, 1983, by an outside contractor. Assertions that such work has traditionally and historically been performed by Laborers does not meet the Petitioner's burden of proof. No evidence of record establishes that such work herein disputed either belongs to the employes, or has ever been performed by Maintenance of Way Laborers.

Finding no evidence to support the Organization's alleged Agreement violation, this Board denies the Claim. All other issues raised by the parties to this dispute on the property are herein considered of no further consequence by the Ruling."

From a review of the foregoing, it is plain that the Majority compounded its failure to examine the plain facts together with the clear rule by its FAILURE TO EVEN LOOK AT WHAT IT WAS CITING AS CONTROLLING PRECEDENT in this instance. Suffice it to say that Award 26032 was denied for a lack of rule support and/or evidence, bears no factual similarity to the dispute decided by Award 29535 and should not have been cited as controlling precedent. Although the Majority grievously erred in Award 29535, the real travesty was the furloughed Claimants' real loss of work opportunity in this instance and their very real loss of monetary benefits accruing thereto. Unfortunately, the Majority by Award 29535 visited its own maverick brand of industrial justice upon the Claimants which only brings home the principle that an injury to one is an injury to all. Therefore, I am compelled to dissent.

Respectfully submitted,