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 February 6, 2007, the Carrier utilized outside forces to clear snow from the Illinois River Bridge Road and South Pekin parking area. According to the Carrier, four inches of snow fell that day and:
First, in Third Division Award 40079, the Board discussed the impact of emergencies on the Carrier's obligations under the Agreement:
And, as discussed in Third Division Award 32862, ". . . [t]he burden rests with the Carrier to demonstrate the existence of the emergency." Form 1 Award No. 40078
The Carrier has not shown that a four inch snowfall adversely impacted its operations to the extent necessary to be considered an "emergency." The snowfall was not that heavy and the work was performed on a road and parking area.
Second, the Carrier asserts that it served notice on the Organization of its intent to contract out the work. The Organization disputes that assertion. The Carrier failed to produce a copy of that notice. We therefore cannot find that such notice was issued by the Carrier as required by Rule I(B).
Third, this is a contracting dispute. The fact that scope covered work has not exclusively been performed by the covered employees is not a complete defense by the Carrier to its obligations to the Organization in these disputes. "[Exclusivity is not a necessary element to be demonstrated by the Organization in contracting claims." Third Division Award 32862, supra and Awards cited therein. The question in contracting disputes is whether the contracted work falls within the scope of the applicable schedule agreement. Snow removal is classic Maintenance of Way work covered by Rule I.
Fourth, the fact that the Claimant worked on the claim date does not deprive him of a remedy. The Claimant lost work opportunities due to the Carrier's violation of the Agreement. See Third Division Award 32$62 supra:
The Claimant shall therefore be compensated for the number of hours worked by the contractor on February 6, 2007 consistent with the provisions of the Agreement. Form 1 Award No. 40078
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
CAR MEMBERS' DISSENT
to
THIRD DIVISION AWARD 40078 - DOT MW-40646
The Majority's decision in this case appears to condone the Organization's tactic of "lying behind the log." To the extent the Award relies on that improper practice, the Award is flawed, and its reasoning and conclusion should be avoided in future matters. Therefore, this dissent is necessary.
The Majority states that it cannot find that notice was issued by the Carrier as required by Rule 1(B) because the Organization disputed the Carrier's assertion that notice had been served and the Carrier did not produce a copy of the notice. The Majority's finding, however, does not comport with the on-property record. To be sure, the Organization initially raised Its standard allegation, as it admittedly does in virtually every contracting case regardless of the actual facts, asserting that notice had not been served. The Carrier unequivocally refuted that allegation, however, producing a statement from the local manager which pointed out that notice had indeed been served.
Thus, the Organization's response did not question the Carrier's assertion - to the contrary, its reply tacitly concedes that notice had been served, arguing only that the Organization did not agree to the proposed contracting. If the Organization had any question as to whether notice had been served, it certainly did not raise the issue when it should have and when CARRIER MEMBERS' DISSENT TO
the Carrier would have had the opportunity to produce a copy of the document.
In such circumstances, the Carrier's unrefuted statement that notice had been served should have been considered as proven fact. No citation of authority is necessary for that most basic principle of arbitration decision making. The Organization's attempted resurrection of that argument in its Submission came too late and should have been ignored based on the onproperty record. Instead, however, the Majority rewarded the Organization for keeping silent until the on-property record had closed, and for once again regurgitating in its Submission its rote argument of lack of notice. Such a finding is contrary to long-standing arbitral precedent and cannot form the basis for a sustaining award. In light of this plainly erroneous finding, the Carrier Members respectfully dissent.
LABOR MEMBER'S RESPONSE
TO CARRIER MEMBER'S DISSENT
TO
.AWARD 40078, DOCKET MW-40646
(REFEREE BENN)
The Organization is compelled to respond to the Carrier's dissent in order to set the record straight.
It should first be noted that the comment that the Organization was "laying behind the log." referenced prominently in paragraph one of the Dissent is completely without merit. There was no ambush of the Carrier wherein it was at all baffled by the initial claim. It was a straight forward time claim because the Carrier contracted out the snow removal work that the Claimant had been performing since he was assigned to a speed swing position at the location of the claimed work just months prior to the initial claim.
Second, the Board clearly held that snow removal work is "classic Maintenance of Way work covered by Rule I." For the Carrier to prevail in this case it was incumbent upon it to show a reason for contracting out this work as outlined in the Scope Rule. Scope - Rule 1(b) states:
As noted above, there are exceptions built into the Scope Rule that the Carrier could use as justification for assigning the work to outsiders rather than the Maintenance of Way employes. One of those exceptions was attempted by the Carrier during handling of this dispute on the property. The Carrier alleged that the snow storm which brought the snow resulted in `emergency time requirements' which necessitated assigning the work to an outsider. The Board clearly held that no emergency existed. The Rule obligates the Carrier to cite an exception outlined in the Scope Rule in order to justify its decision to contract out Scope covered work. The Carrier failed to do so. What it did do was initially argue that the work was not scope covered and, therefore, notice was not necessary. In later correspondence it alleged that notice had been issued and within the same paragraph it alleged that an "emergency" existed. In support of its position was an e-mail message alleging that notice had been served. That was the state of the record on the property. The Board correctly found that the Carrier did not prove an "emergency time requirement" or support its affirmative defense that it issued a notice for the Scope covered work at issue here. Hence, the Board was correct to sustain the claim. The mere unsubstantiated assertion of a notice being tiled is insufficient proof that such was the case. As has been said many times in this line of work, merely stating that it is so does not make it so. For these reasons the Organization must respond to the Carrier's ill-advised dissent and concur with the findings of the Board.
