The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.
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 dated April 12, 1990, he Carrier advised the Organization of its intent to solicit bids to cover the unloading of ties from cars at various locations across the system.
By letter dated April 18, 1990, the Organization objected to the Carrier's contracting out the work. Conference was held on May 15, 1990 without resolution. The contractor's forces began the work on October 1, 1990.
This matter has been addressed before on the property and has been resolved in the organization's favor. Third Division Award 28590. That Award is not palpably in error and shall be followed. Compensation shall be awarded for times, if any, Claimants were in a furloughed status.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
LABOR MEMBER'S CONCURRENCE
AND DISSENT
TO
AWARDS 31037. 31038, 31041,
31042, 31044 AND 31045,
DOCKETS MW-30347, MW-30349. MW-30391.
MW-30406, MW-30411 AND MW-30414
(Referee Senn)
These awards correctly find that the Carrier violated the Agreement, hence a partial concurrence is appropriate. However, the Majority has misrepresented the findings of precedent award 30005 in order to justify its denial of damages to Claimants who were not furloughed at the time of the violation. While it is true that in Award 30005 the Board awarded damages to furloughed claimants, it did so simply because all of the claimants were furloughed at the time of the violation. This fact is amply demonstrated by the fact that in Award 30528, with the participation of the same Referee as in Award 30005, the Board awarded damages to claimants who were not furloughed at the time in a dispute involving the contracting out of similar work.
In denying and/or declining to award damages in other claims presented by the Organization, this same Majority has often expressed its regard for the value of the principle of stare decisis, which it has described as the settling of similar disputes arising under the same rules in a similar manner in order to promote stability. However, in order for stare decisis to have any value in promoting stability, the Board must apply it evenhandedly. Stability is not promoted when t Labor Member's Concurrence and Dissent to Awards 31037, 31038, 31041, 31042, 31044 and 31045 Page Two
Board misrepresents the findings of a prior award in order to avoid an award of damages where a violation is found.
Inasmuch as the Majority here has misrepresented the findings of Award 30005 and refused to recognize the efficacy of precedent awards in order to impose its own notions of equity and industrial justice, the subject awards are palpably erroneous and valueless as precedent on the issue of damages.