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 not based on the on property handling. Such is the case here.
The Neutral apparently forgot the principles in contracting out of work cases and simply followed the Carrier's submission when this award was written. This is somewhat surprising since this Neutral has helped shape those principles with the rendering of approximately twenty-five 25 awards at the Third Division alone. The very way the Carrier handled this case smacks of bad faith and for the Board to condone such action clearly defiles the entire railroad arbitration process.
It is apparent from a reading of this award that the Majority ignored the notification process stipulated in Rule 52 and justified its decision on an alleged "mixed practice"For a mixed practice to exist there must be some evidence that other than Maintenance of Way forces have performed the work and that such evidence must establish more than a few isolated incidents. The evidence that the Board relied on here was a sixteen (16) page list that did not contain one incident of the Carrier contracting for dirt work or pile driving. The list simply referred to different pieces of equipment the Carrier had rented and the contracting of general bridge work. In other words, the Neutral simply took the Carrier's word that it had contracted out this type of work. Simply saying it is so, does not make it so. I wonder how many times that principle has been used against the organizations at the NRAB? Obviously, this award was not based on the facts as presented on the property.
The Majority then goes on to expand on its mixed practice fantasy with ""*` The Organization has failed to prove that this is an exclusive practice that can only be performed by bargaining unit personnel. '*"" There is nothing in the Maintenance of Way Agreement that requires this Organization to prove an exclusive practice. The reality is that the contracting out of work rule specifically refers to "work customarily performed by employes covered under this Agreement". Had the parties who negotiated the Agreement meant to include the term "exclusively" rather than "customarily" they would have done so. Moreover, the Public Law Board Agreement entered into by the partiesthat established this Board included language that specifically restricted the Board from changing or amending the Agreement. Consequently, this award is in violation of the Public Law Board Agreement, it is not in compliance with the terms of the Agreement and, therefore, void of precedential value.
As an aside, the NRAB, this Neutral included, has consistently held that exclusivity is not the determining factor in contracting out of work cases, customary and historical practice is.
The Majority further errored when it held that "*** However, nothing in the Agreement requires the Carrier, in a mixed practice situation, to use its own forces when it believes that it will be more reasonable and cost effective to use outside forces. ***" Not only has the economy issue been debunked by the NRAB but this very Neutral penned that principle in Third Division Award 29394.
The tone of this award is probably best expressed by what it does not impart, i.e., the presence of a proper notice. The Organization was made aware that the Carrier had contracted out this work prior to the notice being served. The Organization advised the Carrier of this fact and requested that it provide a copy of the contract with the outside concern for the Organization's review. Needless to say, the Carrier did not respond which would lead one to believe that the Organization's position was correct. If there is a dispute which would more demonstrate bad faith in a contracting out claim (December 11, 1981 Letter of Agreement), one cannot imagine.
CARRIER'S RESPONSE
TO
ORGANIZATION MEMBERS DISSENT
TO
AWARD 17 OF PUBLIC LAW BOARD NO. 5546
Contrary to the Organization Members assertion in his "Dissent", Award No. 17 is based on similar on-property handling and therefore the Referee did not err in his findings nor Is the award palpably erroneous.
As the Organization Member stated in his dissent, "For a mixed practice to exist there must be some evidence that other than Maintenance of Way forces have performed the work and that such evidence must establish more than a few isolated instances:" Even though the Organization Member erroneously attacks the lists provided in the on-property handling for the dirt work (i.e. grading, build berms, stabilization, etc), more importantly he totally ignores at least seventeen (17) prior Awards rendered on the issue of dirt work and the application of Rule 52 of the Agreement. To refresh his memory the following is the list of Awards arising out of disputes he has advanced to arbitration: 27010 (1988); 27011 (1988); 27020 (1988); 28619 (1990); 28622 (1990); 29308 (1992); 29309 (1992); 29577 (1993); 30193 (1994); 30210 (1994); 30671 (1995); 30824 (1995); 31288 (1996); 31652 (1996); 31721 (1996); and, Public Law Board 5546 Awards 3 and 6 (1994). Similarly, the Organization Member, in addition to other Awards involving Bridge work, ignores Third Division Awards 30823 (1995); 31170 (1995) and 31281 (1996) all issued relative to the driving of piling for bridges. Apparently, in the Organization Members mind, such esteemed Neutrals as Goldstein, Duffy, Marx, Benn, Newman and Malin are all additionally wrong. Contrary to the assertion of the Organization Member, Referee Meyers did not err when he followed the above findings and his own Award 29577 of the Third Division.
As to the issue of the Notice, the Organization member apparently has his cases mixed up. The file showed that the Notice was served on February 22, 1991, it was conferenced on March 15, 1991 and the work commenced on April 1, 1991. This clearly is in compliance with Rule 52 and the Referee was correct in finding that proper notice was given by the Carrier. Simply put, the Referee has not erred.
In any event, the Carrier considers the Award to have precedential value and the Carrier will continue to cite the above findings in similar disputes.