The Third Division consisted of the regular members and in addition Referee Herbert L. Marx, Jr. when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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 were given due notice of hearing thereon.
This Claim is closely similar to that reviewed in Third Division Award 30540. The Board here reaches the same conclusion as in that Award.
LABOR MEMBER'S DISSENT
TO
AWARDS 30521, 30537, 30538, 30539, 30541.
30542 and 30544, DOCKETS MW-29746,
MW-30615. MW-30632, MW-30692,
MW-30748. MW-30788 and MW-30929
(Referee Marx)
In these awards, the Majority cited its palpably erroneous reasoning elaborated within Award 30540 as alleged justification to deny the instant claims. In view of the errors discussed and cited in the Labor Member's Dissent to Award 30540, it is obvious that the findings of the Majority in these awards are grievously in error and of no value as precedent.
Cattier Members Concurring Opinion
to Award 30540 and
Reply to the Organization's Dissent
to Awards 30540, 30521, 30537,
90538,30539, 30541, 30542,
30543,30544
Finally, the Dissent is so taken with its outrage that it even confuses the fundamental burden in this or any rules case. The Scope rule is silent on paving (hot, cold or otherwise) and clearly the Organization has the burden of establishing both coverage by the Scope and a contractual violation. The Majority's conclusion that the Employees have failed to demonstrate a consistent practice of performing the disputed work of hot paving is hardly shown to be erroneous by the Dissent's quotation of eight statements. only two of which make any mention of hot paving. In the Dissent's view, the Organization's failure of proof becomes the Majority's erroneous conclusion.
Labeling an Award "palpably erroneous" does not make it so. The Majority's findings and well reasoned conclusions stem from a voluminous record aided by both sides' presentation of its best case. Award 30540 will indeed be of precedetuial value.
The reasons for which the above-captioned awards are palpably erroneous are thoroughly explained within the Labor Member's Dissents thereto and there is no reason to repeat all of them here. However, exception is taken to the Carrier Members' statement that the Dissent is so taken with its outrage that it even confuses the fundamental burden in this or any rules case. ***" First of all, the tone of the Dissent to Award 30540 can hardly be characterized as one of outrage. Secondly, is no confusion as to the fundamental burden of proof in this case. Clearly, the Organization's burden was to show that the work involved was reserved to the Employes u vague, Award 30540 was denied on the basis of the erroneous finding that the work was not scope covered). What work is covered under the Scope of this Agreement? We look to the scope Rule to find out:
The parties have agreed that generally recognized Maintenance of Way work is that which is "customarily" performed by Maintenance of Way employes. If Maintenance of Way employes customarily perform certain work or if they performed that work as of the effective date of the Agreement, such work is scope covered. Clearly, the burden is on the organization to prove either (1) that the work is generally recognized as Maintenance of Way work or (2) that the work was that which, as of the effective date of this Agreement, was being performed by these employes. There is not a burden "to demonstrate a consistent practice" under this Agreement, notwithstanding the position the Carrier Me erroneous because it is not one of the standards to which the parties have agreed.
Even though proof of only one of the criteria cited within the Scope Rule is sufficient to establish scope coverage, the Organization proved both that its members subject work and that the work was that which was being performed by Maintenance of way employes as of the effective date of the Agreement. This was done by the submission of written statements Labor Member's Response
from one hundred three (103) current and former Conrail Maintenance of way employes. For the Carrier members' edification, the quotation of eight (e) employe statements within the Dissent was not meant to prove "*** a consistent practice of performing the disputed work ***" (a burden the Organiz Dissent, but was merely to show a representative sample of the evidence of customary performance of work as of the effective date of the Agreement, which the Majority erroneously overlooked in favor of the Carrier's unsupported assertions.
The Organization having met its burden, as discussed above, it was the Carrier which then asserted the defense that a controlling past practice of contracting out paving of crossings existed in opposition to the proven scope coverage. As the party asserting a controlling past practice, the Carrier then had the burden of proving such a practice. The Carrier c evidence of the existence of such a controlling practice. That the Carrier had such a burden of proof of a controlling practice is supported by a plethora of awards of this Board.
If there is one point in the Carrier Members' Response on which we can agree, it is that merely labeling an award "palpably erroneous" does not make it so. However, the Labor Member's Dissent did not merely label awar Labor Member's Response