The General Chairman responded to the Carrier's notice, maintaining that Service Order No. 8419 was "procedurally inadequate and/or defective" in that it was "vague and inconsistent" with the specific requirements of Rule 52 and the December 11, 1981 Letter of Understanding. The General Chairman further maintained that the Order did not contain requisite information, including exact locations, the dates the work is to be performed, the length of time contemplated to complete the project, and the reason Carrier is contracting out this specific work. The General Chairman requested that the Carrier provide a copy of the proposed contract at the conference.
On February 26, 1999, the parties conferenced, via telephone, the work at issue. Thereafter, on March 2, 1999, the Carrier documented the conference discussions with regard to Service Order(s) 2292, 2293, and 8419, stating that:
The General Chairman responded to the Carrier's March 2 correspondence, reiterating the Organization's position with specific regard to Service Order 8419: Form 1 Award No. 36745
On June 21, 1999, the Carrier denied the claim, alleging that the ties at issue were sold to R.T.I. Contractors on an "as is-where is" basis, and that such work is not within the scope of the BMWE Agreement. Factually, the Contractor employees were "picking up their own property," according to the Carrier.
The General Chairman appealed the Carrier's decision, reiterating the arguments set forth in the initial claim. The Carrier denied the Organization's appeal, again maintaining that the materials at issue were sold on an "as is-where is" basis, and that such work is not covered under the Scope Rule. The denial further noted that the use of a contractor was "in conformance" with the Carrier's "preserved right" to contract work, and that "numerous" Awards have held that the Carrier is entitled to contract such work. Finally, the Carrier included copies of the Claimant's payroll histories which demonstrated that they were "fully employed" throughout the claim period.
The case was discussed in conference on May 2, 2000 during which both Parties reaffirmed their positions. Thereafter, on June 12, 2000, the Organization sent the Carrier a letter arguing that by selling the material on an "as is-where is" basis, the Carrier was merely "discounting" the price of the material to cover the cost of the labor that would "otherwise be performed by agreement forces." The Form 1 Award No. 36745
Carrier responded to the Organization's post-conference letter, noting that prior Awards had have rejected the Organization's "barter theory" where title to the materials has been transferred to a contractor.
On June 27, 2000, one day after the Organization riled its Notice of Intent to file a Submission to the Board, the Carrier sent the Organization additional correspondence in which it included a copy of the contract with R.T.I. Railroad, having "failed" to honor the Organization's request for same in earlier correspondence.
At the outset, the Organization asserts that it did not receive "proper" notice regarding the issue now in dispute. Without regard to whether or not it was required to do so, we do not concur with the Organization that the Carrier "failed" to serve notice. The Carrier's February 2, 1999 Service Order No. 8419 provided notice to the Organization well before the 15-day time requirement specified in Rule 52 of the Agreement.
Turning to the merits of the dispute, the "Contract For Work or Services, made and entered into as of May 1, 1998, by and between Union Pacific Railroad Company and R.T.I.-Railroad Materials" specifies "all material released from projects during the term of this agreement shall become the exclusive property of the Contractor at the time the material is removed from the track structure." The contract further provides that "the Contractor agrees to accept transfer and assignment of the material as is where is, and with all faults." Thus, it is clear that the ties were transferred to R.T.I. in place, at the locations specified.
Boards have consistently held that such an "as is, where is" sale as occurred in this instance does not fall within the Maintenance of Way scope. (See for example, Third Division Award 30185). In these specific circumstances, we find no violation of the Agreement between the Parties, and therefore, this claim must be denied.
LABOR MEMBER'S DISSENT
TO
AWARD 36745. DOCKET MW-36250
(Referee Nancy F. Eischen)
The Majority's error in denying this case based on material that was new and not exchanged between the parties during the handling of this dispute on the property requires dissent.
A review of the record reveals that during the handling of this dispute on the property, the Carrier alleged to have sold the material at issue here on an "as is, where is" basis. The General Chairman clearly and forcefully requested that the Carrier prove the existence of a bona fide sales agreement during the handling of this dispute on the property. After all, it was the Carrier that raised the sales agreement as an affirmative defense. Once the Carrier was challenged, it was obligated to produce evidence thereof while the case was still active on the property. The record reveals that after the Organization filed its letter of intent with the Board, the Carrier belatedly provided a copy of the alleged sales agreement. The Carrier had this document in its possession since May 1, 1998 but waited until the record was sealed before it foisted it upon the Organization in an attempt to prove its affirmative defense.
Notwithstanding the fact that the alleged sales agreement actually required the Carrier to pay the contractor for services provided, what is particularly disturbing here is the Majority recognized that the alleged evidence provided by the Carrier to support its affirmative defense was received by the Organization after the record was closed. Nevertheless, the Majority accepted the alleged evidence as proving the Carrier's case and improperly denied the claim. Circular No. 1 precludes any consideration of new evidence or argument not presented during the on-property handling and the Majority's disregard for this cardinal rule of the Board renders its findings palpably erroneous. Because the Majority's conclusions have no factual basis and were based on evidence not considered during the on-property handling of this case, Award 36745 can be of no precedential value whatsoever. Therefore, I dissent.
CARRIER MEMBERS' RESPONSE
TO
LABOR MEMBER'S DISSENT
TO
AWARD 36745. DOCKET MW-36250
(Referee Nancy F. Eischen)
The "closed record" argument raised before the Board and in the dissent was not proven in the record presented to the Board for review. The evidence accompanying the Organization's Submission reveals that the Carrier supplied the disputed contract to the Organization by fax on June 27, 2000. The Organization's Notice of Intent, dated June 26, 2000, was received by the Board on June 27, 2000. Paragraph 9 of the Uniform Rules of Procedure states, "All time limits will be governed by the postmark date or its equivalent in the absence of a postmark." Assuming arguendo that a post office affixed postmark dated June 26, 2000, exists, or other proof that the letter either arrived at the Board or was deposited in the mail on June 26, 2000, no such documentation establishing a valid postmark of June 26. 2000 was ever included within the record before the Board. Given the absence of this essential fact, there was no reason for the Majority to give any weight to the Organization's argument that the Board's consideration of the contract was barred because the record was closed.
The instant Award is consistent with other Awards involving scrap sales to third parties (See: Third Division Awards 29559, 29561, 30216, 30220, and Public Law Board No. 5546, Case 14). Numerous Awards recognize the right to sell unused property on an "as is, where is" basis.