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.
At the outset, the Carrier protested new evidence provided ty the Organization in its Submission to the Board. None of the information so provided will be considered by the Board in its deliberations on this matter.
This dispute concerns the driving of Carrier's pick-up truck by a Supervisor. The Organization maintains that such work has been traditionally and customarily performed by BMWE employees and is, therefore, properly assigned only to them. As remedy for the alleged violation, the Organization seeks four hours at the time and one-half rate for Claimants for each day cited in the abovereferenced claim. In support of its p cites Third Division Award 28185. In that Award, the Board held that the Carrier had erroneously permitted Training Instructors to set up and operate a pump for removing water found in the cellar cf one of the Carrier's buildings.
The Carrier asserts that the Agreement does not support the Organization's position. It denies that the language of the Agreement reserves picking up and delivering supplies to vendors, or moving trailers of Mechanical Department material, exclusively to Truck Drivers. Carrier maintains that evidence on the reccrd shows a practice of "mixed assignment" for all of the work _n dispute. It refers to Third Division Award 26236, in which the Board found that:
As in that case, there is no showing in the matter current--v before this Board that, by historical practice, the work at issue has been reserved to Truck Drivers. Form 1 Award No. 31254
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 31254, DOCKET NO. MW-30986
(Referee Wesman)
One school of thought among railroad industry arbitration practitioners is that dissents are, for the most part, not worth the paper they are printed on or the postage to send them out because they rarely consist of more th which were considered and do not prevail in the case. Without endorsing this school of thought in ge that what we have in this instance is a dichotomy which is commonly found in the arbitration arena when similar cases are argued in front of different arbitrators at nearly the same time. Glhile one case may be pending a decision, the other arbitrator could be the first to render a decision which, in the event the award is not palpably erroneous, should stand as precedent. Under date of September 26, 1995, Referee Eischen ren identical circumstance as the instant case, wherein it was determined that:
The Majority held that the organization had met its burden of proof insofar as the Agreement violation was concerned; however, the remedy was adjusted to reflect one minimum call under the Call Rule for each claim date and is the appropriate remedy for the violations of the Agreement.
The dispute cited herein is nearly identical to that which was found within Award 31129. Generally, when decisions are rendered that have nearly identical circumstances and fact patterns as other disputes that are pending resolution at the NRAB, copies of those awards are forwarded to the referee who had not yet rendered a decision. As was the case here, Award 31129 was adopted on September 26, 1995, but the proposed awar review in this case was sent to the NRAB under date of September 19, 1995 and was adopted on November 1, 1995. Hence, there was no opportunity to send Award 31129 to this referee for consideration because the proposed award had already been issued. As it turns out, the Majority held that:
The error in the above-cited award is readily apparent. The authority under which the Majority premised its decision to deny the claim was based upon a class dispute between a foreman and a truck driver covered under the same Agreement. In the case under review here, the Carrier assigned a supervisor who holds no seniority within the Maintenance of Way between these two (2) parties:
Rather than accepting the well-reasoned precedent cited within Award 28185 as controlling here, the Majority's convoluted reasoning twisted the findings of a class and cra 26236) to fit the circumstances present in this case. Again, this case was not a class and craft dispute where exclusivity may apply, but rather was the assignment of scope covered work to a supervisor. This Board has consistently held that supervisors are not to perform scope covered work and that an flawed reasoning, Award 31254 is palpably erroneous and cannot be considered as precedent.
LABOR MEMBER'S DISSENT
TO
AWARD 31254, DOCKET NO. MW-30986
(Referee Wesman)
One school of thought among railroad industry arbitration practitioners is that dissents are, for the most part, not worth the paper they are printed on or the postage to send them out because they rarely consist of more th which were considered and do not prevail in the case. without endorsing this school of thought in ge that what we have in this instance is a dichotomy which is commonly found in the arbitration arena when similar cases are argued in front of different arbitrators at nearly the same time. 44hile one case may be pending a decision, the other arbitrator could be the first to render a decision which, in the event the award is not palpably erroneous, should stand as precedent. Under date of September 26, 1995, Referee Eischen ren identical circumstance as the instant case, wherein it was determined that:
The Majority held that the organization had met its burden of proof insofar as the Agreement violation was concerned; however, the remedy was adjusted to reflect one minimum call under the Call Rule for each claim date and is the appropriate remedy for the violations of the Agreement.
The dispute cited herein is nearly identical to that which was found within Award 31129. Generally, when decisions are rendered that have nearly identical circumstances and fact patterns as other disputes that are pending resolution at the NRAB, copies of those awards are forwarded to the referee who had not yet rendered a decision. As was the case here, Award 31129 was adopted on September 26, 1995, but the proposed awar review in this case was sent to the NRAB under date of September 19, 1995 and was adopted on November 1, 1995. Hence, there was no opportunity to send Award 31129 to this referee for consideration because the proposed award had already been issued. As it turns out, the Majority held that:
The error in the above-cited award is readily apparent. The authority under which the Majority premised its decision to deny the claim was based upon a class dispute between a foreman and a truck driver covered under the same Agreement. In the case under review here, the Carrier assigned a supervisor who holds no seniority within the maintenance of Way between these two (2) parties:
Rather than accepting the well-reasoned precedent cited within Award 28185 as controlling here, the Majority's convoluted reasoning twisted the findings of a class to fit the circumstances present in this case. Again, this case was not a class and craft dispute where exclusivity may apply, but rather was the assignment of scope covered work to a supervisor. This Board has consistently held that supervisors are not to perform scope covered work and that an flawed reasoning, Award 31254 is palpably erroneous and cannot be considered as precedent.