The Third Division consisted of the regular members and in addition Referee Edwin H. Benn 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 waived right of appearance at hearing thereon.
By letter of June 15, 1990, the Carrier notified the organization that 'As information, individuals will be repairing and constructing fences along the Carrier's right-of-way between Walcott and Green River in the State of Wyoming ...."
Even assuming the work in dispute is construed as subcontracting (the Carrier asserts that the work was performed by ranchers on their land paralleling the right-of-way where the land had been leased from the Carrier), the Carrier's ability to contract out this type of work has been decided on the property. See Third Division Award 30221. The claim must therefore be denied. Form 1 Award No. 31034
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant (s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 31034, DOCKET MW-30326
(Referee Senn)
This same Majority has often expressed the value of the principle of stare decisis, which it has described as the settling of similar disputes in a similar manner in order to promote stability in the relationship between the parties. The trouble with this Majority is that it often has trouble identifying which precedent awards are closely similar for the purpose of applying that principle. In the instant case, the work involved the construction and repair of over eight (8) miles of barbed wire right of way fence. Inasmuch as the facts and circumstances involved were identical to those involved in the dispute decided by Third Division Award 29916, except as to dates and locations of the work, this case was ripe for the application of the principle of stare decisis, based on Award 29916. The reader is encouraged to see Award 29916 to verify this fact, since Award 29916 devoted twelve pages explaining the facts surrounding the dispute it decided. However, instead of identifying an award in a similar dispute on which to base its decision, this majority chose =o search for a denial award in order to rationalize the denial of this claim. The trouble with the Majority's decision to do so is that the award it chose (Award 30221) involved totally different work, that of the installation of approximately two tenths of a mile of chain link fence in a yard area. Again, the reader is invited to verify this fact by referring to Award 30221. Labor Member's Dissent
While the principle of stare decisis is laudable, it has value in cases before this Board only if the Majority is careful to apply it correctly by ensuring that the facts and circumstances surrounding the dispute in the prior award are truly similar to those present in the dispute to be decided. The Majority in this case demonstrated an unconscionable disregard for the facts by citing dissimilar Award 30221 as a basis for its decision rather than identifying the nearly identical factual situation found in Award 29916 to correctly apply stare decisis. Hence, Award 31034 is palpably erroneous and can have no value as precedent.