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.
This dispute centers upon Carrier's assignment of outside forces (Steel Processing Services. Incorporated) to cut down and remove two fuel tanks and a water tank at Newport News, Virginia. The Contractor's forces were also used to clean up scrap behind Carrier's main office at the same location.
On June 22, 1993 the Organization submitted a claim asserting that Carrier had violated Rules 1, 2, 3, 66, 83 and Appendix B of the Agreement when it allowed the Contractor to perform work which B&B forces had "historically and contractually" performed. The Organization further asserted that Carrier did not notify the General Chairman of its intent or provide opportunity to discuss the work at issue.
Carrier denied the claim, maintaining that it sold its property "as is, where is" to the outside concern, which, under the terms of the sales agreement, retrieved its purchase from Carrier's property. According to Carrier, the transaction was a sale. and as such, no subcontract existed and no violation of the Agreement transpired.
The Organization stated throughout the handling of the claim, without dispute or denial from Carrier. that when Carrier required such work to be performed in the past it had been "historically and contractually" performed by B&B forces. However. Carrier responded with the affirmative defense that the fuel and water tanks had been sold. and that the Contractor was merely retrieving the purchased scrap from Carrier property. If proven. that might well have been the end of the case, but Carrier bears the burden of proof on that critical point. Carrier asserted that it had sold the scrap at issue to Steel Processing Services Incorporated. The Organization maintains that Carrier did not timely furnish any evidence in support of that assertion. and that failure to produce the requested documentation was fatal to its defense. On that point. the evidence clearly favors the Organization's position. Form 1 Award No. 32638
Throughout handling on the property, the General Chairman repeatedly requested such proof, asking that a bill of sale be furnished to the Organization. The record supports the Organization's assertion that Carrier did not furnish a bill of sale at any time during handling on the property. In fact, it was not until January 5, 1994, that Carrier hand delivered a bill of sale, curiously dated January 5, 1994, to the General Chairman. Although Carrier contended that it had sold the tanks as scrap back in Spring 1993, there is no probative evidence on this record to support that assertion.
There is no dispute that Carrier did not notify the General Chairman and discuss performance of the work in dispute. The issue of dismantling tracks and structures has been decided by the Board, on this property, in two previous Awards. See Third Division Awards 27112 and 28759. As noted, supra, Carrier's defense to Scope Rule coverage of the work was not persuasively established. Based upon all of the foregoing, this claim must be sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) be made. The Carrier is ordered to make the .ward effective on or before 30 days following the postmark date the ,ward is transmitted to the parties.
CARRIER MEMBERS' DISSENT
TO
THIRD DIVISION AWARD 32638; DOCKET MW-32119
(Referee Eisclien)
LABOR :MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENTING OPINION
TO
AWARD 32638, DOCKET MW-3_2119
(Referee Eischen)
The Majority was correct in its ruling in Docket MW-32119 and nothing present in the Carrier's dissent distracts from the correctness and precedential value of th
The dissent attempts to portray the referee as ignoring evidence that was submitted during the on-pr case. The Board is not required to accept evidence that does not support the submitting party's position. Here, the Carrier alleged that it had sold the material at issue here on an "as is, where is" basis at some unknown time prior to the filing of the initial claim on June 22, 1993. After repeated requests by the Organization to oresent evidence of the sale, the Carrier delayed presenting said evidence until January 5, 1994. As was pointed out by the referee, =ne ai=eged bill of sale was "curiously dated January 5, :9941-, the same date it was submitted into the record. The problem with the Carrier's dissent is that the referee did consider the alleged evidence and found it to be lacking in probative value. The Board held:
A review of the above-cited language from the award reveals that the referee was more than kind to the Carrier when it disregarded the alleged evidence. This is have very easily declared the alleged evidence for what it actually is, i.e., fraudulent evidence. The Minority should have recognized this failing and held silent to the Majority's findings. It did not do so and this response was necessary. The award is correct and stands as precedent.