The Third Division consisted of the regular members and in addition Referee Dennis J. Campagna when award was rendered.
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 or about January 30, 2001, the bridge inspector on the Wichita Falls Subdivision discovered a crack in the hearing block supporting the steel span at Pier No. 4 of the bridge located at Mile Post 98.72 in the vicinity of Henrietta, Texas. On or about February 12, 2001, a subsequent inspection resulted in a ten mph speed restriction being placed on the bridge. On or about February 14, 2001, the Carrier used B&B forces to raise the bridge and place a steel shim on the damaged pier. As a result of this temporary repair, the speed restriction was raised to 25 mph. Subsequently, without written notice to the General Chairman, the Carrier hired an outside contractor to effectuate further and more significant repairs to the Pier at Mile Post 98.72. In its on-property appeal, the Organization maintained as follows:
Appendix No. 8 (Article IV of the May 17, 1968 National Agreement) obligates the Carrier to provide timely written notice to the General Chairman when it plans to contract work 11[w]ithin the scope of the applicable schedule agreement." It is well established arbitration precedent that the Organization bears the burden to make a prima facie showing that the work at issue was arguably scope covered in order to trigger the Appendix No. 8 notice provision. (See Third Division Award 36515.) In meeting this burden, the Organization is obligated to provide some specifics establishing that BMWE-represented employees have actually done the disputed work in the past or were otherwise entitled to perform it. (See Third Division Award 36515, as well the Awards cited therein). Establishing that the disputed work is scope covered is most important where, as here, it is well established that epoxy injection projects are not, nor have they ever been work "customarily" performed by BMWE-represented employees. (See Third Division Awards 32603 and 38092, as well as Public Law Board No. 6538, Award 4.) In its attempt to meet this burden, the Organization provided statements from two of the Claimants. The first letter disputes the existence of an emergency, and provides no details with regard to epoxy injection work having ever been performed by the Claimant. The second letter provides some detail regarding the temporary repair to the Pier, and noted further:
The second Claimant, like the first, failed to provide any detail regarding epoxy injection work having been performed by him on the "similar project" noted above. While the Claimants are no doubt capable of performing ordinary concrete bridge repair work, the foregoing statements provide no detail relative to their capability and/or prior experience to perform epoxy injection work. Accordingly, we find that the Organization failed to meet its threshold burden of demonstrating that the work at issue is scope covered. Under these circumstances the Board concludes that Appendix No. 8 was not violated when the Carrier proceeded to contract out the work at issue without providing advance notice to the General Chairman.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 38990. DOCKET MW-37343
(Referee Campagna)
A strong dissent is required because the reasoning of the Majority is both misguided and flawed. An award which is misguided and flawed is obviously erroneous and of no value as precedent. It is crystal clear that the Majority ignored the prior awards involving the parties hereto and especially Award 28722 involving these parties and a bridge repair project. There can be no question but that the Majority blatantly neglected to consider the Carrier's admitted failure to notify the General Chairman. Contrary to the Majority's conclusions, this Board's prior awards involving these parties have clearly required that the Carrier notify with the General Chairman prior to such a contracting transaction. Because no notice/conference was held between the Carrier and the General Chairman prior to the subject work being performed by an outside contractor, Award 38990 is palpably erroneous, ignores the clear and unambiguous language of Article IV agreed to by the parties and STANDS ALONE.
Apparently, the Majority did not bother to read or understand the prior awards to reach its anomalous findings, but cavalierly paid them specious homage because onproperty Awards 19440, 24484, 24884, 25007 and 28722 ALL found that the Carrier had violated the notice/conference requirements of the parties' Agreement. However, the Majority's misguided pronouncements did not stop with its negligent oversight of the Carrier's failure to confer with the General Chairman. In this case, the Carrier assigned its B&B employes to perform repairs to the bridge which increased the speed from 10 MPH to 25 MPH. Hence, the alleged emergency situation was remedied by the Carrier's employes. Because the Carrier initially assigned its B&B forces to perform repair work on the bridge, it should have been impossible to allege that bridge repair work was not Scope covered. During the panel discussion on this case we cited Award 31977 wherein the carrier in that case initially assigned its own B&B employes to perform repairs on a bridge then pulled them off the job and contracted out the rest of the repair work to an outsider without issuing the required notice. Thereafter the Carrier alleged in that case, as the Carrier did in this case, that such work was not Scope covered and therefore notice was not required. The Board held in Award 31977 that:
The Majority clearly erred here when it failed to sustain this case for the Carrier's lack of notice.
To credit such a "past practice" would be a serious error. The referenced past practice relied by the Majority to deny this case puts the cart before the horse. The issue of whether epoxy injection work is work that could be performed by the Claimants should have been addressed at a conference pursuant to a notice. The Majority's "cart before the horse" reasoning here sets the notice and conference provisions on its head. This Board has consistently held that the Organization need only show that the work is arguably within the Scope of the Agreement in order to get notified of the Carrier's intent to contract out the work. The Carrier's own actions of assigning the Claimants to perform repairs to the bridge to upgrade the speed thereon from 10 MPH to 25 MPH prior to contracting out the work should have been sufficient to activate the notice/conference provisions of the Agreement. Hence, Award 38990 does nothing but violence to the resolution of = contracting out of work dispute and the fundamental purpose for which Article IV was negotiated.
The important point, which the Majority in its headlong rush to deny a valid claim missed, was that any "reason", valid or otherwise, should have been discussed in conference with the General Chairman in good faith before the contracting transaction. Article IV expressly requires this. To proffer "reasons" after the fact is meaningless. Simply stated, Award 38999 is poorly reasoned and worthless.
However, the number of disputes, decided in the aforementioned line of precedent on this property, ALL of which found "notice/conference" violations, the Carrier's actions in this case were a ell orate evasion of its known contractual obligations. Such flagrant, repeated violations Labor Member's Dissent