The Third Division consisted of the regular members and in addition Referee Peter R Meyers 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 11,1934.
Ibis Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This claim arose when the Carrier assigned two C&S employees to operate a ditch witch to excavate for a drainage line at Enola, :Pennsylvania on March 14 and 15, 1991. The Organization took exception to the assignment and filed the instant claim on behalf of the Claimants contending that the Claimants, E. W. Maerki and S. Wentzel, have established and hold seniority as B&B plumbers and should have been assigned the B&B plumber's work in question. Furthermore, the Organization contends that the Claimants were available and fully qualified to perform the work.
The Carrier denied the claim contending that in order to dig "a long, uniformly, narrow, shallow trench, which was the exact requirement needed for the project," the Carrier determined it had to use the" ditch-witch." The only Carrier department that has this type of equipment is the C&S department, and therefore, it made sense to the Carrier to utilize C&S employees to operate such equipment.
The parties being unable to resolve the issues raised by the claim, this matter comes before this Board.
This Board has reviewed the record in this case and we find that the Organization has not met its burden of proof that the Carrier violated the Agreement when it assigned two C&S t:mployees to operate a ditch-witch in connection with the installation of a drain on March 14 and 15, 1991.
The record reveals that the Carrier, in making preparations to install a new drain line, determined that a ditch-witch was necessary to loosen the soil. The ditch-witch is operated by C&S employees who are qualified on that machinery. The record reveals that the B&B Department does not possess the ditch-witch equipment nor does it have the skilled manpower necessary to perform the work with that equipment. The Carrier contends that the Maintenance of Way Department did not have the necessary equipment to perform the work as needed and it was the Carrier's decision to have the ditch-witch used for the specific purpose in this case.
Moreover, the Carrier points out that the subsequent excavation and plumbing work that was necessary for the preparation of the drain line was performed by Maintenance of Way employees.
Although the Organization takes the position that the work could have easily been performed by a Maintenance of Way employee utilizing a backhoe, it is not necessary Form 1 Award No. 31544
LABOR MEMBER'S DISSENT
TO
AWARD 31544. DOCKET .`^W-30883
(Referee Meyers)
The Ma]ority clearly failed in its responsibility to review and render a proper decision in this docket. The record in this case was crystal clear in that the Carrier assigned an employe represented by the Brotherhood of Railroad Signalmen to perform sewer line laying work. During the handling of this dispute on the propert.;, the Carr-er .never denied that _t assigned C&S employes to perform the work; -herefore, the need to prove that the work was performed outside of the Maintenance of Way Agreement was unnecessary. The Carrier defended its viol that inasmuch as the ground where the sewer line was laid was so hard, it determined that it was necessary to use a "ditch-witch" to "loosen the ground". On this basis, the Majority made its erroneous findings of:
It was pointed out on the property, and never disputed by the Carrier, that the work of laying sewer lines accrues to the employes of the Bridge and Building Depa determines which class of employe performs such work and inasmuch Labor Member's Dissent
as =he digging of the sewer line _nvoived here was performed in connection with the performance of Maintenance of ',gay work, the Carrier's assignment of such to C&S employes was clearly improper and in violation of the Agreement. Moreover, it was pointed out that this Board has already determined that the Agreement is for the work, not the tools, materials or machinery used in the performance thereof.
This Board must not sit and dispense its own version of industrial justice and ignore the well-e set forth by this Board. This Board is empowered to interpret the language of the Agreement, guided by t:-.e prior determinations made by this Board to reach its decision. In this case, the Majority certainly did -cc do so here. inasmuch as the findings of this award were not drawn zrom the essence of the Agreement and applicable Board precedent, it stands as precedent. Therefore, I dissent.