This dispute concerns the Carrier's assignment of work repairing piers on the Mississippi River Bridge at Camden, :Minnesota. The Organization contends that maintenance work at this location and of the type here undertaken should have been assigned to B&B Crew 616, represented under the Soo Line-BMWE Agreement. Instead, following a conference with the General Chairman. the Carrier assigned the work to Maintenance of Way forces (Gang 47-Z), represented under the Milwaukee Road Agreement between the Carrier and the BMWE.
The Carrier argued that its Milwaukee Road Gang was experienced in this work and had the necessary equipment. The Carrier contended that B&B Crew 616 was not experienced in this work and challenged the Organization to show that the Claimants had performed such work in the past. The record shows this challenge was not met. Further, there is evidence that, in the past, such work has been contracted to outside forces.
The Board notes that the Carrier utilized its own Maintenance of Way employees (although not on territory encompassed by their seniority) and that all Claimants were otherwise fully employed at the time.
Under these particular circumstances, the Board finds no Rule support to require assignment of the work in question to the Claimants rather than to other Carrier Maintenance of Way employees with demonstrated experience in the required tasks.
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 32602, DOCKET MW-31755
(Referee Marx)
The Organization is compelled to issue a vehement dissent to the determination and misguided reasoning asserted by the Majority.
The problem here is that a review of the record reveals the Organization clearly presented substantial evidence that this carrier routinely assigned, and the claimants performed, work identical to the work involved in this dispute. Furthermore, the record shows the Claimants were performing the claimed work over a five (5) week period immediately prior to the work dates listed in the initial claim. Moreover, in the Carrier's Submission at Page 21 corroborates the Claimants had been performing said work at the very same location prior to the claim period.
The crux of this dispute is the Carrier's failure to assign work in accordance with the seniority provisions as set forth in the Agreement between the parties. In this case the Board correctly recognized the Carrier utilized its own Maintenance of way employes, although the employes so assigned were on territory NOT encompassed by their seniority nor were they employes covered by the SOO Line Agreement. The employes assigned to perform the work were covered by the Agreement between the Carrier and the employes covered under the Chicago, Milwaukee, St. Paul and Pacific Agreement. Nonetheless, the majority chose to ignore said recognition, and the crystal clear provisions of the Agreement, in rendering their decision. This Board has consistently held that work is reserved by seniority districts and in this connection we invite attention to Award 25964, one of nineteen (19) awards supporting such position cited in our submission to the Board and ignored by the Majority, wherein it held: Labor Member's Dissent
The obvious error of the above-cited statement is that the record is absolutely void of any evidence that such work had ever been contracted to outside forces, and in any event sub-contracting was not an issue in this case. In this connection we note that the Carrier submission, at Page 21, states: "*** First, there was no subcontracting involved in this dispute, as there was no agreement :hat operated independently or had the potential of derivation of =heir collective bargaining agreement. ***"
Again, the dispute does not =oncern subcontracting but does ooncern work assigned to Maintenance of Way Employes without regard to the applicable seniority rights of the Claimants under the terms of the operative Agreement, i.e., the Soo Line Agreement.
The record of this case clearly shows the Carrier blatantly disregarded the applicable Agreement and defended their violative action with insupportable and `actually incorrect assertions. However, the Majority simply =nose to credit the Carrier's insupportable assertions rather tan the detailed statements by the Claimants and the factual evidence presented by the Organization. Hence, the Majority exceeded its jurisdiction when it rendered its decision in this case which leaves the findings fundamentally flawed and of no precedential value.