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.
In this claim, the Organization asserts that Carrier violated the Agreement when it engaged 15 employees of Dixie Road Builders, an outside concern, to reconstruct a road crossing at Jenkins Street in Waycross, Georgia. The contractor's forces expended a total of 120 hours reconstructing the crossing. Due to the loss of work opportunity, the Claimants (15 senior furloughed Maintenance of Way employees in the Track Subdepartment on the Atlanta-Waycross Seniority District) seek a proportionate share of the 120 hours expended by the contractor's forces.
This case revisits the well-traveled question of whether paving work is scope covered. Both parties introduced a substantial number of prior Awards establishing that the early Award precedent recognized that paving work was scope covered and that contracting out of that work violated the Agreement. However, the most recent series of Awards, which represent the current authority, have established that this work is not reserved to the Organization's forces. We see no basis from deviating from this long line of Awards. Moreover, the record demonstrates that Carrier has a past practice dating back to at least the mid-1980's of having contractors pave road crossings on its property.
We are particularly persuaded, herein, by the Director of Employee Relations' response to the General Chairman's letter. That letter dated October 4, 1993 sets forth valid reasons for using contractors in this case, thereby defeating the assertion of bad faith. For example, Carrier notes that "the paving work requires special equipment that the Carrier does not possess. The work requires special skills and expertise as well . . . the paving of grade crossing approaches resembles roadway work not track work .... The ownership of the road, that is State, county, city, is another factor that determines what methods will be used to pave an approach."
1ABOR MEMBER'S DISSENT
"0
A strong dissent is required because _he reasoning of the '·tajority is both misguided and flawed. An award which is misguided and flawed is obviously erroneous and of no value as precedent. while the Majority paid lip service to the many prior awards In::owing the parties hereto and the pa admitted failure to notify/confer with the General Chairman. Contrary to the majority's conclusions, recent on-property awards comprising the "current authority" have clearly required that the Carrier notify/confer with the General =.".airman prior to such a contracting transaction. Because no .ct_ce/conference was held cetween the Carrier and the 3eneral ::airman prior -o -..^.e subject worK ceing pertormea c:v ~n :utside _cntractcr, Award 32523 _s paipaoly erroneous, ignores =ne --1ear and ,;nambiguous Language of Rule 2 agreed to by z:'.he parties and STANDS ALONE.
Apparently, the Majority did not bother to read or .;nderstand -_`:e prior awards to reach its anomalous findings, out _,avallerly card them specious homage because on-property Awards 6200, 18287, 22591, 22917, 23498, 28936, 28942, 29202, 29430, 29432 ;night ;9) -uses held in abeyance theretol, 29580, 29824, 30194, 30608 and Labor `ember's Dissent Award 32523 _-^aae -~·No
31867 ALL found treat the Carrier -ad violated the notice/conference requirements of the carties' Agreement. However, the Ma7crity's misguided pronouncements did not stop with its negligent oversight of the Carrier's failure to confer with the General Chairman. The Majority erroneously found that:
The ~?a]ority -further erred when it accepted the Carrier's belated excuses for contracting the line of :,n-property awards and upheld in the most recent on-property award prior '.hereto, Award 31
"The language contained in Rule 2 of the Agreement is clear and unambiguous with respect to the contracting out of work. In pertinent part, Rule 2 states that in circumstances under which the Carrier intends to contract out work it must 'confer with the General Chairman and reach an understanding setting forth the conditions under which the work will be performed.' *** Based on the undisputed facts concerning the Carrier's fai
property, ALL of Carrier's actions
_.. This ease were a deliberate evasion of its known cencractual .:bligacions. Such flagrant, repeated violations inescapably evidence HAD FAITH and insofar a
in any event, the Majority plainly chose to credit the Carri_ s ::eiated asserc-,ons of special
--7es, not occasionally, but whenever required by the Car--,er as an -n-earal part of road crossing TRACK MAINTENANCE. '.'he Carrier prea=.^.ted .^.o evidence of anv attempt .o rent whatever eamcment er :-.ecessary (as it had many times :n the past) For operation by its Mai e.^.arce of way forces and identified no special skill whic:i its __rces _acked. 3ecause the record evinces that the Carrier's :·tain- -_enance __ way Forces have customarily paved hundreds .:f road
