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 waived right of appearance at hearing thereon.
This dispute involves the use of a contractor and a Missouri Pacific B&B foreman to perform work involved with replacing an approach and installing a footwalk and handrail on a bridge at Mile Post 320.29 on the Enid Subdivision. Aside from the propriety of the subcontracting, this case raises the issue of the effect of the parties' failure to hold a conference after proper advance written notice has been given.
The Carrier served written notice on the General Chairman of its intent to solicit bids for the disputed work on January 31, 1991, including its standard disclaimer that the serving of the notice was not to be construed as an admission of the scope coverage of the work. By letter dated February 5, 1991, the General Chairman requested a conference, indicating that the carrier should advise it of the time, date and place on the O.K.T. property that the conference would be held. Carrier responded by letter dated February 14, 1991, acknowledging receipt of the request, and asking the Organization to arrange to include this item on the agenda for discussion at the next regularly scheduled conference, "or, in the event you want to conference this immediately please give me a call and we can set a date for that purpose."
By letter dated February 22, 1991, the General chairman objected to the Carrier's failure to grant the Organization a conference, and stated:
The Carrier responded by letter of March 8, 1991, denying that it ever refused to meet with the organization in conference, and stated:
By letter dated March 12, 1991, the General chairman denied any failure on his part to request a conference, indicating that he had been previously informed that Carrier would not be agreeable to him naming the time, date and place of conferences. This letter also states that Carrier failed to reply within the time limits of most notices and that the contractor was working before Carrier acknowledged the Organization's request for a conference. Arrangements for contacting a designated representative of the Carrier to discuss future notices were set forth in this letter. The Carrier responded by letter dated March 21, 1991, taking issue with certain characterizations made in the General Chairman's March 12, 1991 letter. Apparently, no conference was held, and the record reflects that the disputed work commenced on March 25, 1991.
A review of the record on the property reveals that timely notice was given, and that the Carrier responded to the Organization's request for a conference by indicating a willingness to discuss the matter at the next regularly scheduled conference or at an earlier time if notified of the organization's desire to set an immediate meeting date. The only notification received by the Carrier was the Organization's written claim on February 22, 1991, some three weeks after receipt of the original notice, that it had been denied an opportunity for a timely conference. Since the work did not commence until March 25, 1991, there was still ample time for the Organization to follow through with initiating the scheduling of a timely conference, yet it chose not to do so. Again after being informed that it was the Carrier's position that the organization was the moving party in scheduling conferences, no affirmative action was taken. Rather, the Organization inaccurately claimed that the work in issue had commenced prior to the Carrier acknowledging the request for a conference.
Under circumstances where the organization has failed to take advantage of its Agreement right to have a meeting and engage in good faith discussions following the Carrier's indicated willingness to hold a conference, this Board has held that the organization is precluded from challenging the resulting Form 1 Award No. 31016
contracting. Third Division Awards 24888 and 28337. Any confusion concerning why the matter was not scheduled for conference, and who was responsible for scheduling the conference was clarified prior to any work commencing in this case, and cannot form the basis for overlooking the conference requirements of Article IV and the December 11, 1981 Letter of Agreement and addressing the underlying merits, as was done in Third Division Award 30287.
This Board, after consideration of the dispute identified above, hereby orders than award favorable to the Claimant(s) not be made.