It is transparently clear that the decision of the Majority in Award 40756 was based entirely on prior awards without any regard for the fact that the evidence and argument in the instant case was substantially different than the evidence and argument advanced in the cases decided by those prior awards. Indeed, the Majority immediately launched into a discussion of "Prior Awards on this property", without any mention, much less a discussion and analysis of the argument and evidence in this case. This may have been convenient and expedient, but it was inconsistent with the Board's obligation to consider the evidence and argument in each case.

The value of treating like cases alike is well established. However, it is equally well established that arbitration awards are not binding in subsequent cases. Rather, prior awards may provide guidance, but they must be examined not only to determine if their reasoning is sound, but also to determine if they truly involve like cases with similar facts, evidence and argument. Simply put, neither labor arbitrators in general, nor the NRAB in particular, follow the principle of issue preclusion. Indeed, no less an authority than the United States Court of Appeals for the Seventh Circuit has ruled that the principle of issue preclusion does not apply at the NRAB but, rather, each side is permitted to try again with better arguments and evidence:

"*** When multiple grievances pending at the same time depend on resolution of a single issue, the parties often designate one of the grievances as a `lead case' whose resolution controls the others. Such a designation would be unnecessary if the first case to be decided had preclusive effect automatically. 'Lead case' designation informs the parties that they must assemble all of their evidence and make their best arguments in a single forum; the absence of such a designation implies that the parties need not concentrate their artillery but may make investments proportional to the stakes. ***

Because this was not a `lead case,' the Board permits each side to try again, with better arguments and evidence. It applies not principles of preclusion but an approach very much like the `law of the case': the Board feels free to disregard an earlier decision that appears `palpably erroneous' In light of the evidence and arguments in the second arbitration. E.g., Brotherhood of Maintenance of Way Employees-Burlington Northern, Inc., Award No. 22374 (3d Div.-Sickles 1979), at 2. ***" (Emphasis in bold added) jBhd. of Maint. of Way Employees v. Burlington IU R.R. Co., 24 F.3d 937 (r Cir. 1999)]

RULE 52(B)AND

"MIXED PRACTICE"

The Majority relied heavily on the findings in prior awards that the Carrier had established a "mixed practice" of using contractors and employes covered by the Agreement to perform the work of mowing and cleaning the right of way and, therefore, the Carrier was permitted to contract out this work pursuant to Rule 52(b). But what the Majority failed to do was even consider, much less discuss and analyze, the Organization's evidence and argument which proved that the Carrier's so-called "mixed practice" argument was not only irrelevant under the terms of the Agreement, but factually wrong.

While no one disputes that Rule 52(b) preserves prior and existing practices,'-` it also expressly preserves prior and existing right and the Organization has conclusivel

established that it had prior and existing contract rights to perform mowing and right-2 way cleaning work pursuant to the clear and unambiguous language of Rule 9 and its predecessors. Although past practice may be used to fill in gaps in contract language, it can not be used to contravene the clear prior and existing rights that reside in Rule 9 (as well as Rule 8) and were expressly preserved in Rule 52(b). In short, the Organization has developed new argument and documentary evidence concerning the meaning and relationship of the plain language in Rules 9 and 52' that renders the past practice asserted by the Carrier in this case to be completely irrelevant. The Majority's failure to even consider that argument and evidence resulted in an award that is palpably erroneous and should not be afforded any deference by future Referees.

Assuming that past practice was relevant despite the express reservation of work in Rule 9 (which it is not), the Carrier would have been obligated not simply to assert a past practice, but to present probative evidence that such a practice existed at the time Rule 52(b) was negotiated. Moreover, the Carrier would have been obligated to prove that the practice occurred for reasons other than the exceptions permitted by the Agreement and that it had all the requisite elements of a binding practice (i.e., that the practice was clear, long standing, repeated consistently and known at all requisite levels of the Organization). It simply did not do so in this case.

'-' Although there can be no dispute that Rule 52(b) preserves prior practices, there is a considerable dispute over precisely what practices were preserved and what constitutes evidence of such a practice. Glossing over this important contract term with the phrase "mixed practice" is not sufficient to prove the elements of a binding practice.

9' The documentary evidence that Rules 8, 9 and 52 mean precisely what the Organization says they mean consists of both written admissions against interest by the Carrier and the documented bar aining history of these rules. See Third Division Awards 14061 (1965), 28817 (1991), 2916 (1993), the Fishgold Award (2003) and the Newman Award (2006). In particular, see the Fishgold Award at Pages 7-10 and 14, and the Newman Award at Pages 29-31. The Fishgold and Newman Awards arose in the context of threatened strikes and related litigation and were "party pay"arbitrations where the parties, in the words of the 7~' Circuit "must assemble all of their evidence and make their best arguments in a single forum" and those awards fully support the Organization's position on the meaning of Rules 8, 9 and 52.

Finally, it is important to recognize that the Majority's unfounded assertions concerning a purported "mixed practice" are really nothing but another way of asserting the UP's own forces have not performed mowing and right-of-way cleaning work to the exclusion of all others. However, as the Majority should certainly know, it is now well established by literally dozens of awards, including awards on this property, that the socalled exclusivity test applies only to jurisdictional disputes between different classes or crafts of a carrier's own employes and does not apply to contracting out disputes. See on property Award No. 14 of PLB No. 7099 and Newman Award at Pages 31 and 35.

The logic for rejecting the application of the "exclusivity" or "mixed practice" test to contracting out disputes on this property is particularly compelling in light of the fact that the parties themselves expressly stipulated that Rule 52(a) applies to work "customarily" performed by employes covered by the Agreement. A school boy knows that "customarily" does not mean "exclusively". Moreover, applying the so-called exclusivity test to contracting out disputes is not only contrary to the black letter of Rule 52(a), but also in direct conflict with the spirit and intent of that provision as a whole. Unlike class or craft disputes where a class or craft of employes claims a right to perform certain work to the exclusion of all other employes, Rule 52(a) does not contemplate (and BMWE does not claim) an exclusive reservation of work as against contractors.

Instead, Rule 52(a) provides that work customarily performed by Scope covered employes may be contracted for the reasons expressly set forth in the rule (e.g., special skills, special equipment, special material and emergency time requirements). In light of these exceptions, it's safe to say that virtually any work customarily performed by employes within the Scope of the Agreement may have been contracted out at some time in the past and, therefore, none of this work would have been exclusively performed by Scope covered employes. In other words, applying the exclusivity or "mixed practice" test as the seminal test for the application of Rule 52(a) destroys Rule 52. Indeed, applying the exclusivity or "mixed practice" test would destroy the entire collective bargaining agreement because it drains all work from the Agreement and all terms and conditions of the Agreement attach to the performance of that work.

THE BLANKET NOTICE