The Claimant holds seniority as a Trackman on the Mohawk District of the Albany Division. The claim was filed because Roadmaster S. Cohn plowed the parking lot and roadways in and around Massena Yard between 4:00 A.M. and 7:00 A.M. on the dates set forth in the claim. The Carrier defended on the grounds that "[a] multiplicity of crafts in addition to contractors have historically been utilized to perform . . . " snow removal and because there was a "heavy snow emergency."
First, we reject the Carrier's assertion that it was entitled to assign the snow removal work to Roadmaster Cohn because of a "heavy snow emergency." See Third Division Award 35835 between the parties:
As in Third Division Award 35835, there is nothing in this record beyond the Carrier's assertion that a "heavy snow emergency" existed. That is not enough to prove the existence of an emergency that would permit the Carrier to avoid the application of the Scope Rule.
Second, with respect to the merits of the Organization's argument concerning the alleged mis-assignment of work and consistent with the findings in Third Division Awards 31752 and 32344, we found in Third Division Award 35835 that "snow removal Form 1 Award No. 35838
work is scope covered work." In Third Division Award 35835 we sustained the claim because the Carrier did not give the Organization notice as required by the Scope Rule that it was going to contract out snow removal work. In that Award, we specifically rejected the Carrier's argument that the Organization had to demonstrate that covered employees exclusively perform the work:
But Third Division Award 35835 was a contracting out dispute. This is not. This dispute involves the Carrier's alleged misassignment of work to other employees. While the Organization does not have to demonstrate exclusivity of performance of the work in contracting out cases, in these kinds of non-contracting out cases, and because the Scope Rule is general in nature, the Organization is obligated to demonstrate that covered employees have in the past performed the work to the exclusion of others. See Third Division Award 35840:
The Organization submitted a statement signed by seven employees stating that "[w]e the undersigned have in the past and present always plowed the right of ways, yards, and roads and do not now, or ever have known Trainmasters to use company vehicles with plows to do this job." The Carrier asserted on the property that "[t)o the contrary, snow removal has been historically performed by all crafts and classes of employees, as well as non-agreement personnel and contractors across the system."
At best, this record is in conflict on the question of whether covered employees have exclusively performed this work. But the burden is on the Organization to demonstrate that covered employees have in the past performed the disputed work to Form 1 Award No. 35838
LABOR MEMBER'S DISSENT
TO
AWARD 35838. DOCKET MW-33364
(Referee Benn)
The Majority erred in its finding in this Docket and a Dissent is required. Throughout the handling of this case, the Organization repeatedly pointed out that the work of removing snow was covered by the Scope of the Agreement and the assignment of such work to a supervisor was a violation of the Agreement. Awards 31752 and 32344 involving these same parties clearly held that snow removal work is Scope covered work. In both of those awards the Board considered and rejected the Carrier's argument that other classes of employes, as well as supervisors, have performed snow removal work in the past. Hence, the issue of whether snow removal work is Scope covered has been settled in favor of the employes covered by the Maintenance of Way Agreement.
Where the Majority erred here was when it considered that supervisors are a class ofemployes. This i 24435 involving these same parties, cited at Pages 9 and 10 of our submission clearly held:
A review of the above-cited quotation clearly shows that supervisors have universally been excluded from consideration as employes who are allowed to perform Scope covered work. Apparently, the Majority believed that a Supervisor %N as a "class" of employe and therefore the Organization was required to show that it had an exclusive right to perform snow removal work to the exclusion of supervisors. Again the three (3) on-property awards have held that snow removal work is Scope covered work reserved to Maintenance of Way employes. Once Scope coverage is established the Carrier is not allowed to give this work to any other class of employe, much less a supervisor. Labor Member's Dissent
The dispute cited herein is nearly identical to that which was found within Award 24435. The authority under which the Majority premised its decision to deny the claim was based upon a dispute between this Organization and employes covered under the Indiana Harbor Belt Agreement and involved inspection of tracks. In the case under review here, the Carrier assigned a supervisor who holds no seniority within the Maintenance of Way Agreement to perform work reserved to employes covered thereunder as clearly stated in the three (3) awards previously mentioned. Rather than accepting the well-reasoned precedent cited within Awards 24435, 31752 and 32344 as controlling here, the Majority's convoluted reasoning twisted the findings of this case into a class and craft dispute. Again, this case was not a class and craft dispute where exclusivity may apply, but rather was the assignment of scope covered work to a supervisor. This Board has consistently held that supervisors are not to perform scope covered work and that an affirmative remedy is appropriate. Inasmuch as the Majority reached its conclusions based on flawed reasoning, Award 35838 is palpably erroneous and cannot be considered as precedent. '