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 October 15, 1997, the Carrier sent the following correspondence to the Organization:
Thereafter, on November 17, 1997 the Organization filed a claim on behalf of Messrs. Teel, Strokson and Vasecka alleging that the Carrier violated the Agreement when it sublet work belonging to the Maintenance of Way to outside contractor Railroad Material Salvage, Inc." Specifically, the General Chairman maintained that when the Carrier "hired Railroad Material Salvage to cut up and pick up used ribbon rail between Glasgow and Popular, Montana," it violated Rules 1, 2,5, 6, 7, 24, 25, 29 and 55 of the Agreement, in addition to the Note to Rule 55, 78 and Appendix Y. Form 1 Award No. 36690
The Carrier denied the claim asserting that Railroad Material Salvage "purchased the rail they were cutting up and removing on an as is-where is basis" and that it was Railroad Material Salvages' responsibility to remove the same. The Carrier went on to note that: "The cutting up of rail purchased by another company is not work traditionally done by BMWE employees."
In an appeal to the Carrier's denial, the Organization argued that: "Picking up rail which has been removed from the tracks is certainly work that is incidental to the maintenance and repair of the tracks' roadway and right-of-way. It is work that is classified within Rule 55 and work which has been customarily performed by the employees and has been reserved to the Maintenance of Way employees." The Organization further asserted that the Carrier "compounded" the violation when it failed to give proper advance notice and hold a conference as required by the Note to Rule 55. Finally, the Organization noted that "no proof has been provided to support the allegation that the rail was in fact sold."
In this dispute the Organization claims that the Carrier violated numerous Rules by (1) contracting out the removal of scrap rail, and (2) by failing to serve notice of its intent to contract out the same. However, a review of the record evidence supports the Carrier's assertion that the scrap rail at issue was sold on an "as is-where is" basis, and the purchaser, Railroad Material Salvage, merely removed its own property. The dispositive fact of record is that, in handling on the property, the Carrier provided copies of "As-Is/Where-Is" Sales Agreements covering scrap material on the Montana Division and the Twin Cities Service Region (Region 4), which included the material on the territory between Glasgow and Poplar, Montana, which is the subject matter of the present claim.
ORGANIZATION MEMBER'S DISSENT
TO
AWARD 36689, DOCKET MW-35798
AND
AWARD 36690, DOCKET MW-35811
It has been said more than once that one school of thought among railroad industry arbitration practitioners is that dissents are not worth the paper they are printed on because they rarely consist of anything but a regurgitation of the arguments which were considered by the Board and rejected. Without endorsing this school of thought in general, it is equally recognized that a dissent is required when the award is based on erroneous information presented by one of the parties. Such is the case here.
The Majority held that the Carrier had satisfied its burden to prove its affirmative defense in this case. The affirmative defense was that the Carrier had sold the track material at issue here to the contractor on an "as is, where is" basis. From the initial instance where the Carrier raised this defense the Organization clearly and repeatedly asked for the Carrier to prove its affirmative defense. In an attempt to meet its burden, the Carrier finally presented a document that purportedly supported its position. The record is clear that the General Chairman immediately pointed out that the document presented by the Carrier did not pertain to the area where the work was performed. Moreover, the General Chairman clearly and forcefully pointed out that the document presented by the Carrier specifically stated:
The record is devoid of evidence that the Carrier presented the probative evidence of a sales agreement. In fact, the Carrier was passing off misinformation as proof of a sale. Then, when faced with the fact that the document presented did not support its position, the Carrier asserted that a verbal agreement had been reached to extend the area covered by the document it attempted to pass off as proof. Clearly, as the above-quoted excerpt from the document shows, that document could only be modified in "writing and signed by both parties." Inasmuch as no written modification was presented, the alleged sales agreement did not support the Carrier's affirmative defense.