This claim concerns an allegation that the Maintenance of Way Agreement was violated when, on 11 dates in January 1990, Carrier employed an outside contractor to clean culverts and switches at Conway Yard, using a vacuum truck with an operator in the employ of the contractor. Carrier maintains that it has traditionally contracted out this type of cleaning activity and supports this contention by references to past claims brought by the organization which were denied by its highest designated officer to handle claims and grievances and were never appealed further.
The organization has offered nothing to overcome these assertions. Accordingly, the Board must conclude that a practice is in place of contracting out this specific activity. In this regard attention is directed to an earlier award involving similar arguments between these same parties. In Third Division Award 29558 the Board concluded:
The record dictates that the same result be reached here. The claim is without merit. It will be denied.
LABOR MEMBER'S DISSENT
TO
AWARD 29866. DOCKET MW-29932
(Referee Fletcher)
When considering the problems facing this Board, this member sincerely appreciates this Referee's straight forward approach. However, that approach should be based on the evidence developed during the handling on the property and the principles adopted by the Board over the years. Since this award was based on alleged evidence submitted by the Carrier in its submission to the Board and since the Majority ignored a very basic principle in claim and grievance handling, a dissent is required.
At Page 2 of the award, it was stated that "*** Carrier maintains that it has traditionally contracted out this type of cleaning activity and supports this contention by references to past claims brought by the organization which were denied by its highest designated officer to handle claims and grievances and were never appealed further." While it is true that the Carrier did assert during the handling on the property that it had contracted out this type of work in the past, it did not present any evidence in support thereof. It was not until the Carrier presented its submission to the Board that it referenced two (2) prior claims by claim number in alleged support of its position. The Organization properly objected to the argument raised in connection therewith within its September 25, 1991 letter of objection. For whatever
reason, it was improperly considered. The NRAB has consistently held that it cannot consider material not exchanged by the parties during the handling on the property and I will not burden this record with a lengthy citation of those awards.
More disturbing is that the Majority would consider two (2) claims that were not progressed by the organization off the property as being precedent. Third Division Award 28047 held:
Third Division Awards 16018 and 20041 among others held to a like effect.
Even more disturbing is the Majority's pronouncement that the two (2) claims abandoned by the organization on the property constitute "*** a practice is in place of contracting out this specific activity. ***" and then quote from Third Division Award 29558 which talks about "... long-established practice of contracting out this particular work. ***11 Even assuming the two (2) abandoned claims could be considered as precedent, and considering this is an industry that has a history of over hundred (100) years, how can two (2) instances of any action be considered a longestablished practice.