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.
The Carrier served notice on the Organization of its intent to subcontract by date of October 15, 1997. The Organization responded two days later, requesting a conference date of October 22, 1997. The outside contractor, Holland Industries began "flash butt" welding work utilizing one In-Track Railwelding Mobile Welder on October 20, 1997, or two days prior to the conference.
The Organization argues that the work performed was Maintenance of Way work, that could have been performed by Foreman Fisher's welding crew which was actually doing this very same work by thermite method before and after Holland came and left the property. It maintains that the Carrier violated the Agreement in its blatant failure to properly notify the Organization of its intent to contract out, and its use of the outside contractor to do scope protected work.
The Carrier denies that it violated the Agreement, in that the work performed was welding work that had never been and could not be performed by the employees. The Carrier maintains that flash butt welding and thermite welding are not the same, with flash butt of better quality. The Carrier argues that the late notice was due to operating pressures, but moreover, flash butt welding is not within the Scope of the Agreement.
The Agreement and record before the Board demonstrates that thermite welding is scope protected and Notice is required. However, the question at bar revolves around the issue of flash butt welding. The Carrier argued that these "two processes are Form 1 Award No. 36425
completel3 different" and more importantly that "this is not workyou have traditionally, historically, customarily or exclusively performed."
It is incumbent for the Organization to establish a factual base to demonstrate that the work herein disputed is within the Scope of the Agreement for the NOTE to have relev once. Certainly, if welding is welding, then the Organization can demonstrate that its employees have performed flash butt welding. If they have performed the work, then it is covered by the Scope of the Agreement and the Note to Appendix I was violated.
In this record there is no probative evidence for the Board to conclude that the notice was necessary. The Carrier consistently held that the Claimants do not do this type of work and never have. The Carrier noted that the "Claimants do not perform similar wi)rk." In the full record, the Carrier argues without rebuttal that the employees have never performed this type of work, do not know how to operate the equipmenr and that the Carrier does not own the equipment.
The Board notes that even the signed statements of the employees do not indicate that they have or can perform the work. Foreman Welder Fisher states that the Carrier should "purchase an in Track Mobile Welder and train someone to run it." The other employee responses indicate no history or knowledge of flash buttwelding with Claimant Randall slating that "from what I understand thermite is just as good."
Ignoring or late complying with the Notice requirements is at the peril of the Carrier. In this instance, where the record demonstrates no evidence that the work belongs under the Scope of the Agreement, the Board cannot find a violation. Notice is required when work is contracted out that is "within the scope of this agreement" and not when i t is work that cannot be proven to be traditionally, historically or customarily performed by the employees. As there was no proof of employee past performance, the Carrier was under no Notice obligation and the claim must fail. Form 1 Award No. 36425
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.
The Carrier served notice on the Organization of its intent to subcontract by date of October 15, 1997. The Organization responded two days later, requesting a conference date of October 22,1997. The outside contractor, Holland Industries began "flash butt" weldingwork utilizing one In-TrackRailwelding Mobile Welder on October 20, 1997, or two days prior to the conference.
The Organization argues that the work performed was Maintenance of Way work, that could have been performed by Foreman Fisher's welding crew which was actually doing this very same work by thermite method before and after Holland came and left the property. It maintains that the Carrier violated the Agreement in its blatant failure to properly notify the Organization of its intent to contract out, and its use of the outside contractor to do scope protected work.
The Carrier denies that it violated the Agreement, in that the work performed was welding work that had never been and could not be performed by the employees. The Carrier maintains that flash butt welding and thermite welding are not the same, with flash butt of better quality. The Carrier argues that the late notice was due to operating pressures, but moreover, flash butt welding is not within the Scope of the Agreement.
The Agreement and record before the Board demonstrates that thermite welding is scope protected and Notice is required. However, the question at bar revolves around the issue of flash butt welding. The Carrier argued that these "two processes are Form 1 Award No. 36425
completely different" and more importantly that "this is notworkyou have traditionally, historically, customarily or exclusively performed."
It is incumbent for the Organization to establish a factual base to demonstrate that the work herein disputed is within the Scope of the Agreement for the NOTE to have relevance. Certainly, if welding is welding, then the Organization can demonstrate that its employees have performed flash butt welding. If they have performed the work, then it is covered by the Scope of the Agreement and the Note to Appendix I was violated.
In this record there is no probative evidence for the Board to conclude that the notice was necessary. The Carrier consistently held that the Claimants do not do this type of work and never have. The Carrier noted that the "Claimants do not perform similar work." In the full record, the Carrier argues without rebuttal that the employees have never performed this type of work, do not know how to operate the equipment and that the Carrier does not own the equipment.
The Board notes that even the signed statements of the employees do not indicate that they have or can perform the work. Foreman Welder Fisher states that the Carrier should "purchase an in Track Mobile Welder and train someone to run it." The other employee responses indicate no history or knowledge of flash butt welding with Claimant Randall stating that "from what I understand thermite is just as good."
Ignoring or late complying with the Notice requirements is at the peril of the Carrier. In this instance, where the record demonstrates no evidence that the work belongs under the Scope of the Agreement, the Board cannot find a violation. Notice is required when work is contracted out that is "within the scope of this agreement" and not when it is work that cannot be proven to be traditionally, historically or customarily performed by the employees. As there was no proof of employee past performance, the Carrier was under no Notice obligation and the claim must fail.
LABOR MEMBER'S DISSENT
TO
AWARD 36425, DOCKET MW-35492
(Referee Zusman)
This award is palpably erroneous and a dissent is required. The Majority's finding in this case can only be described as moving from the sublime to the absurd. The record that was developed during the on-property handling of this case reveals that the Carrier issued notice of its intent to contract out welding work dated October 15, 1997. The General Chairman requested a conference concerning the proposed contracting. The problem here is that the work began on October 20, 1997 only five (5) days after notice was issued and two (2) days before the conference. Such is hardly in keeping with the "good faith" requirements of the notice provisions and the December 11, 1981 Letter of Agreement.
In any event, the Organization presented ample and conclusive evidence during the handling of this dispute on the property that welding of rail ends is work reserved to the Maintenance of Way employes in the past and, indeed, such work was being performed by them at this location prior to the assignment of the outside contractor. Even after the contractor left the property the Maintenance of Way welders returned to the location to perform the welding of rail ends. Hence, the work is clearly Scope covered and the assignment of outside forces was in violation of the Agreement. The Carrier's argument that the contractor's method was superior is invalid on its face because the Carrier continues to assign its employes to perform welding of rail ends as of this date. Moreover, this Board has consistently held that the Agreement protects the work, not the tools or the method by which it is performed. Hence, the Majority's reasoning in this award represents an anomaly which the Organization fervently hopes will not be repeated.