The dispute in this case centers around Carrier's use of an outside company to perform the work of dismantling a signal wire pole line. While issues of this general type have been previously reviewed by several Boards of Adjustment, there are nuances present in this case which require individual examination and consideration.
There is no disagreement relative to the fact situation. By letter dated September 3, 1991, Carrier advertised as follows:
Subsequently, by contract dated November 6, 1991, Carrier agreed with the outside company as follows:
The dismantling work on the pole line by the outside firm began on January 13, 1992 and was completed by February 15, 1992.
Because of this action, the Organization on March 12, 1992, initiated the claim which is the subject of this dispute. The Organization's position is two-fold. It contends that the Scope Rule on this property specifically includes "dismantling" as a work function which accrues to the employees covered by the Scope and that, in this case, Carrier did not sell the signal wire pole line, but rather paid the contractor to dismantle and remove it in violation of the Scope Rule. The Organization insisted that this action constituted a contracting-out of Agreement covered work.
Carrier did not address the issue of Carrier's payment to the contractor for the removal of the pole line even though this issue was raised by the organization during the on-property handling of the dispute. Rather, Carrier argued that inasmuch as the signal wire pole line had been abandoned, it was no longer a part of the operation of the railroad and therefore its dismantling and removal was not covered by the Scope Rule. Carrier also, for the first time before the Board, argued that the named Claimants were fully employed during the claim period and therefore did not suffer any monetary loss.
The issue concerning full employment of the Claimants was not made a part of the on-property handling of the dispute and will not be considered by the Board in its deliberations and determinations. The parties know, or should know, that first time presentations such as this before the Board are not proper and will not be entertained.
The Board studied the several Awards which have been cited by the parties in support of their respective positions. Of particular interest is Third Division Award 30084 which held as follows:
The Board finds nothing to disagree with in that Award. However, that Award lends no support to the carrier in this case. There is nothing in Award 30084 which identifies the language of the Scope Rule which is referenced therein. Additionally, that Award clearly covers a situation in which "unneeded fixtures" were "sold to another enterprise."
The same is true of Third Division Award 23259, Award 8 of Public Law Board No. 3285, as well as Award 140 of Special Board of Adjustment No. 570 which were referenced by the Carrier. In each of those Awards, there is no contention or indication that "dismantling" was an integral part of the Scope Rule and there is a clear indication that the equipment, pole line, etc., had been sold to the party which performed the removal.
In this dispute, there is no disagreement relative to Carrier's right to sell its equipment, assets, etc. What is in dispute is the fact that Carrier did not sell the pole line, but rather MLJd the contractor to dismantle and remove it. While Carrier initially announced its intention "to sell its signal open wire pole line in place 'as is'," it ended up by agreeing to pay an outside contractor to dismantle and remove the pole line. The term Form 1 Award No. 31158
"sell" means to dispose of by sale. The term "sale" means "a contract between two parties, called, respectively, the `seller' (or vendor) and the 'buyer' (or purchaser) by which the former, in consideration of the payment or promise of payment of a certain price in money, transfers to the latter the title and the possession of property" (Black's Law Dictionary Revised Fourth Edition). The contract in this case contains none of the requisite elements of a sale.
The Board subscribes to the principle that the sale - that is, the transfer of ownership - of unneeded and/or abandoned equipment, fixtures, pole lines, etc., clearly removes subsequent work on such equipment, fixtures, pole lines, etc., from the Scope of the negotiated Agreement after the sale has been consummated. However, in this situation, there was no sale consummated. Rather, the work of dismantling the signal wire pole line was contracted to individuals other than those classified in the Scope Rule. This is a violation of the clear language of such Scope Rule. In this instance, the parties, by Agreement, included the work of "dismantling" in their Scope Rule. In this instance, the parties, by Agreement, went beyond the "maintenance, repair or construction" which is referenced in Third Division Award 12918 as quoted in Third Division Award 19994 as cited by the Carrier. Here the parties included "dismantling" as a work function accruing to Signal employees. The inclusion of the word "dismantling" in the negotiated Scope Rule, in the Board's opinion, reserves such work to Signal employees provided such work is paid for by the carrier. That is the situation which exists in this case which causes this claim to be sustained.
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. Form 1 Award No. 31158