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.
On July 9,1999, the Organization filed a claim charging that the Carrier assigned an outside contractor to perform certain clerical duties during June 1999, at the Carrier's Trail-Van Terminal in Columbus, Ohio. On behalf of the Claimant, the Organization seeks eight hours of pay at the punitive rate for each regular work day in June 1999.
The Board initially observes that the correspondence exchanged between the parties on the property does not match the exhibits attached to the Submissions that were submitted to the Board. The major disparity concerns whether or not the Carrier received the Organization's April 28, 2000 appeal letter and the massive amount of evidence attached thereto. In addition, the Carrier contends that some of the Organization's arguments in its Submission were not handled on the property. The Organization counters that it properly mailed its April 28, 2000 appeal letter via certified mail and that it did not raise any new contentions in its Submission.
The Board is concerned about the flaws in the evidentiary record because there is the possibility that the issue was not fully joined on the property. Nevertheless, because this case can be properly decided on the express language in Agreement No. TN01-98 dated November 2, 1998 as well as a precedential decision, the Board need not resolve all of the procedural contentions herein. Any procedural irregularities do not ultimately taint the outcome of the case. The Board reserves to both the Carrier and the Organization the right to raise their procedural contentions in any future case without prejudice. Form 1 Award No. 36108
Besides the possible procedural irregularities, the record contains some confusion about precisely what work is in dispute. The Organization's initial claim vaguely refers to an ". . . outside contractor, Parsec .... perform[ing] clerical duties of the Gate Clerk by preparing damage report and authorization for repairs form, CT-7500 . . . ." However, in its Submission to the Board, the Organization alleges that Packer/Crane Hostler Operators employed by an outside contractor, Parsec, inputted loading and unloading information from the Oasis System into the CATS RF work order subsystem, using FTC 860 IM units. The Organization then alleges that this work was previously performed by clerical employees on Conrail, but it fails to allege that these clerical employees were Gate Clerk. Later, in the Submission, the Organization vaguely alludes to the disputed work as gate inspection duties and preparing trailer exceptions. The Carrier contends that, regardless of what work is in dispute, the outside contractor is entitled to continue to perform the work. However, the description of the work is critical because the nature of the disputed work determines which precedential decision is applicable to this case.
After examining the record as a whole, the Board determines that the work in dispute involves Parsec employees recording trailer repair information as opposed to gate inspection duties. Thus, the Board specifically finds that work consisting of gate inspections and completing trailer damage exception reports is not within the ambit of this claim.
The Organization, the Carrier and other related corporate entities entered into Agreement No. TN-01-98 dated November 2, 1998, which became effective on June 1, 1999. Section 1 of the November 2, 1998 Agreement provides:
Pursuant to Section 1(b) of the November 2,1998 Agreement, the former Conrail Scope Rule governs clerical work on this property unless, as stated above, the Scope Rule has been changed by other terms in the November 2, 1998 Agreement. As the Organization points out, the former Conrail Scope Rule is a "positions and work" Rule. See Special Board of Adjustment No. 1011, Award 124. In Award 62, of Public Law Board No. 6090, the Board held that, on the former Conrail property, the work of inputting loading and unloading information from the Oasis System into the CATS RF work order Subsystem was traditionally performed by the outside contractor, Parsec. Award 62 more specifically found that the Organization had not proffered sufficient evidence that clerical employees had performed such work at Columbus, Ohio. The Board went on to adjudge that to the extent that the clerical employees may have been involved in performing some duties ancillary to the disputed work, technological advancements eliminated this ancillary work.
In sum, Award 62 of Public Law Board No. 6090 found that the Carrier did not violate the "positions and work" Scope Rule.
The Organization relies heavily on Public Law Board No. 6090, Award 61. However, Award 61 concerned gate inspection work that the Board has already found is not within the ambit of the instant claim.
Because an outside contractor performed the disputed work herein at Columbus, Ohio, on and before the effective date of the November 2,1998 Agreement, Section 5 of that Agreement permits outside contractors to continue to perform the work. The work remains with the outside contractor unless or until the Carrier terminates its arrangements with the outside contractor. In essence, Section 5 provides that the Form 1 Award No. 36108
clerical craft has a potential, conditional entitlement to certain work in the future. The work will accrue to the clerical craft only if the Carrier terminates its arrangement with the outside contractor and decides to hire its own employees to perform the work. If these two conditions occur, Section 5 provides that such hired employees will be covered by the Agreement and thus, the work will then come within the confines of the "positions and work" Scope Rule. However, until both conditions occur, if they ever occur, the Carrier is free to retain an outside contractor to perform the work in dispute.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.