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 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
In this claim, the Organization asserts that the Carrier violated the Scope Rule, including advance notice requirements and the work reservation language of the socalled "Swert Lette retained an outside contractor (Pittsburgh Fence Company) to erect some 1,500 feet of chain link right-of-way fencing adjacent to the Main Line at Greensburg, Pennsylvania. It is not disputed that the outside contractor erected 500 feet of cyclone (chain link) fence on the north side of the Main Line and 1,050 feet of cyclone fence on the south side of the Main Line.
The Carrier denied the claims on grounds that proper notification was allegedly provided to the General Chairman by a letter from Labor Relations Manager Finnegan dated April 28, 1994, which asserts that the work in question was "not considered routine nor of the magnitude performed by Conrail employees in the past." The Organization contests the format and receipt of the referenced notice letter dated April 28,1994. Even if the letter is assumed, areuendo, to be authentic and valid notice of the contracting out decision and leaving aside the Carrier's protests that the Scope Rule is "general," the Organization made out an essentially unrefuted showing that the Carrier violated specific work reservation language contained in the Letter of Understanding known as the "Swert Letter" (named for its author, the Carrier's former Vice-President of Labor Relations) that reads in governing part as follows: Form 1 Award No. 35565
We find that the fencing work at issue is reserved to BMWE-Agreement covered employees by the Swert Letter and the Carrier failed to persuasively support its assertion that to assign the work to those employees would have required the hiring of new employees for the sole purpose of performing brush cutting or fence installation. Finally, notwithstanding the fact that the Claimants may have been otherwise regularly assigned on claim dates, precedent on this property supports an award of damages regardless of the Claimants' so-called "fully employed" status. Third Division Awards 26593, 30181, 31521, 31752, 31754, 32190, 32335, 32344, 32505, 32508, 32858; Public Law Board No. 3781, Award 7 and Special Board of Adjustment No. 1016, Awards 34 and 41.
Based on all of the foregoing, we sustain the claims for the named Claimants on the dates listed, with the exception of the one date for Claimant Meehan when the Carrier persuasively demonstrated that he was on vacation.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
Carrier Members' Dissent
to Award 35565 (Docket MW-32774)
Referee Eischen
The "Swert" letter provided for the Organization to perform routine fencing. It did not reserve any and all fence work to the Organization as contractually reserved. That this is so is evident from the quotation, at page 2 of the Award, of the Carrier's denial that the work in question was:
It was therefore incumbent on the Organization to present sufficient evidence on the property that it had performed this work with sufficient regularity to be considered routine. However, while the Organization asserted on the property that such fence work was ordinarily and customarily performed, the singular example of such performance was a 1987 incident. In fact this lone example precedes the "Swert" letter by about 2 years. Obviously, this solitary example, which the Majority finds "trumped" the Carrier's defense at page 3 of the Award, does not equate to the ordinary and customarily performed standard. In Third Division Award 31017, involving these same parties the Board noted:
Since, this work was not customarily performed and therefore was not routine, it was covered under item 2 of the "Swert" letter. The Majority's failure to hold the Organization to its burden of proof warrants our Dissent.
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENT
TO
AWARD 35565. DOCKET MW-32774
(Referee Eischen)
According to the Carrier Members' Dissent, the Majority apparently rendered its decision based solely on the "Swert" letter and attempted to divine what constitutes "routine" fencing. The problem with the Carrier's Dissent is that it completely ignores the glaring fact that fencing work clearly outlined in the Scope Rule as work that is reserved to the employes covered by the Agreement. The Dissent spends too much time attempting to reconcile the "Swert" letter with the facts in this case. Fencing work, routine or otherwise, is clearly spelled out in the Scope Rule as. reserved to the employes covered thereby. Apparently, the Dissenters believe that the "Swert"letter operates as a limitation of the Scope Rule. Such is not the case. The record of this case reveals th the Organization presented evidence of performance by the Maintenance of Way employes of such work, of this magnitude, in the past. Hence, Scope coverage was established. Moreover, Third Division Award 32190, Awards 97, 104 and more recently 146 of Special Board of Adjustment No. 1016 between these parties have held that fencing work is reserved to the employes covered by the Agreement.
Because the Carrier was unable to place plain and ordinary meanings of the Agreement language and comply with same, the Board properly sustained the claim in this case. The Dissent Labor Member's Response