I. QUESTION PRESENTED


                The parties join issue on the question set out above, under the heading


            "Question At Issue," in Cases Nos. 66 through 69, Special Board of Adjustment No. 1016,


FRED BLACKWELL ' The disputed Hopkins/Berge letter dated December 11, 1991, is set out in full at
 ATTORNEY AT LAW Appendix pages 1-2.

 P.O. BOX 6095
 WEST COLUMBIA,
 S.C.29171
 I803179t
    - SBA No. 1016 / Award No. 66-A / Re: Hopkins/Berge Letter


            and in Case No. 64, Public Law Board No. 3781.


                The Organization's contention that the disputed letter is part of the parties' single


            Agreement effective February 1, 1982, and is applicable on Conrail property, is


            controverted by Conrail.


                  This Opinion and Award does not make Findings, except for the herein Findings,


            on the claims in the enumerated cases: Nos. 66 through 69, Special Board of Adjustment


            No. 1016; and No. 64, Public Law Board No. 3781.


                            II. POSITION OF THE PARTIES


                The position of the Organization, as summarized at page 24 of the


            Organization's submission on all of the cases enumerated hereinbefore, is as follows:


                                  "SUMMARY

                1. The Carrier's position is based on new argument and evidence that was never made a part of Case Nos. 66-69 of Special Board of Adjustment No. 1016 or Case No. 64 of Public Law Board No. 3781 during the handling on the property.

                2. The December 11, 1981 Hopkins/Berge letter is part and parcel of the December 11, 1981 National Agreement.


          3. The Hopkins/Berge letter applies to every carrier that is covered by the I

                December 11, 1981 National Agreement. It is NOT restricted to just those carriers that directly adopted Article IV of the May 17, 1968 National Agreement.


              4. Conrail is covered by the December 11, 1981 National Agreement by virtue of


the May 5, 1981 Agreement.
 5. Appendix "B" of the February 1, 1982 Conrail Schedule Agreement did NOT
 "terminate" the December 11, 1981 Hopkins/Berge letter on Conrail.
 FRED BLACKWELL 6. The NRAB previously applied the Hopkins/Berge letter to Conrail in Award
 ATTORNEY AT LAW
 P 0. BOX 8095
 WEST COLUMBIA
 SC 29171
 (8031791-8096
                    SBA No. 1016 / Award No. 66-A / Re: Hopkins/Berge Letter


                  26314. Notwithstanding a referee hearing, executive session and written dissent, the Carrier never challenged the finding of Award 26314 that the Hopkins/Berge letter applies on Conrail. A better application of the principle of stare decisis could hardly be imagined."

            The Carrier's position on the Question at Issue, as stated at page 12 of the Carrier's submission, is as follows:


                  'As demonstrated herein the December 11, 1981 Hopkins-Berge side letter on contracting out is not applicable on Conrail because it concerns the 1968 National Rule and neither that rule nor the side letter were preserved in the February 1, 1982 Conrail single agreement."


III. DISCUSSION AND FINDINGS
 STARE DECISIS
 The threshold consideration presented by the confronting record is the
 Organization's contention that Third Division Award 26314 (05-13-87) and Third Division
 Award 27332 (08-30-88) are controlling precedents in this dispute that require a ruling in
 favor of the Organization position that the disputed Hopkins/Berge letter has been
 preserved by the parties' February 1, 1982 Schedule Agreement and hence is applicable
 on the Conrail property. The Carrier acknowledges that the disputed letter is referred to
 in the two cited Third Division Awards; however, the Carrier submits that the reference to
 the letter in these Awards is dicta, because the applicability of the letter to the Conrail
 property was not in contention in the disputes determined by those Awards.
 FRED BLACKWELL This Board, after review and analysis of the cited Awards, Third Division Awards

 ATTORNEY AT LAW

P.O. BOX 6095

WEST COLUMBIA

S.C.29171

191131791-9oe5

SBA No. 1016 / Award No. 66-A / Re: Hopkins/Berge Letter

 Nos. 28314 and 27332 , concludes and finds that these Awards do not establish controlling precedents concerning the Question at Issue in this dispute. The decisions in those Awards do not depend on the applicability or non-applicability of the subject letter to the Conrail property; hence, it is concluded on the record that the reference in these Awards to the Hopkins/Berge letter of December 11, 1981, is dicta and that the reference is not a substantive ruling that can be accorded precedential authority .2


Therefore, it is concluded and determined that the Organization's position on the Question at Issue in this case is not supported by Third Division Award Nos. 26314 and 27332.


Similarly, the Board has considered and finds inapplicable to this dispute several other awards cited by the Organization as presenting instances where a Carrier has been considered covered by the Hopkins/Berge letter even though such Carrier never directly adopted the contracting out rule in the May 17, 1968 National Agreement .3 Third Division Award 28 90 (10-16-90), Award No. 1 of Public Law Board No. 4768 (10-23-90), and Awards No. 136 (05-09-89) and No. 142 (11-01-89) of Public Law Board No. 2960.


        The Organization's statement that these Awards considered the involved Carrier

i

 to be covered by the Hopkins/Berge letter, appears to be correct. However, in none of

 these Awards is there any showing that the Carrier disputed the application of the

FRED BLACKWELL

ATTORNEY AT LAW


P 0. BOX 6095

WEST COLUMM

S.C.29171

19031791-8086


2 The Organization expressly acknowledged that the reference to the disputed letter in Third Division Award 27332, is dicta.

 3 The said contracting out rule is contained at page 7 of the May 17, 1968 National Agreement under the heading "ARTICLE IV - CONTRACTING OUT'.

                            4

                    SBA No. 1016 / Award No. 66-A / Re: Hopkins/Berge Letter


            Hopkins/Berge letter to the property of the involved Carrier.` Therefore, this group of authorities, like Third Division Awards Nos. 26314 and 27332, cannot be given precedential weight in the determination of the confronting Question At Issue.


                                  THE MERITS


            Agreements and Aq_rreement Provisions

            The Agreement provisions and Agreements that are pertinent to the determination of the question of whether the Hopkins/Berge letter has been preserved under the Conrail-BMWE single Agreement effective February 1, 1982, are as follows: the contracting out provisions in Article IV of the May 17, 1968 National Agreement, the December 11, 1981 National Agreement, the disputed Hopkins/Berge letter dated December 11, 1981, the May 5, 1981 Agreement, and the parties' single Agreement effective February 1, 1982.

            The railroads that were combined to form Conrail (Erie Lackawana, Penn Central, etc.) were signatory to the May 17, 1968 National Agreement that contains the Article IV contracting out provisions. Conrail did not exist as a legal entity when the May 17, 1968 National Agreement was signed.

            On December 11, 1981, the Organization and the National Railway Labor Conference (NLRC) entered into a National Agreement. The letter in dispute in this


            The responding Carriers in these Awards, Union Pacific Railroad, the Burlington Northern Railroad Company, and the Chicago and Northwestern Transportation

FRED BLACKWELL Company, were represented by the NLRC in the 1981 negotiations that culminated in the
 ATTORNEY AT LAW December 11, 1981 National Agreement with the BMWE.Exhibit 2, Carrier Submission.

P 0. BOX 6095

WEST COLUMBIA,

S.C. 29171

X8031791-9096

FRED BLACKWELL

ATTORNEY AT LAW

a o. Box 6095


WEST COLUMBIA S.C. 29171 18031791

 SBA No. 1016 / Award No. 66-A / Re: Hopkins/Berge Letter

proceeding, the December 11;,1981 Hopkins/Berge letter, was one of several side letters to the December 11, 1981 National Agreement.

Conrail was not one of the Carriers represented by the NLRC in the negotiations that led to the December 11, 1981 Agreements However, by Agreement dated May 5, 1981, the Organization and the Carrier agreed to defer certain wage increases provided by the December 11, 1981 National Agreement and Conrail agreed to adopt the provisions of the 1981 National Agreement.

The December 11, 1981 National Agreement did not contain any provisions that related to contracting out, nor did it contain any provisions that incorporated Article IV of the 1968 National Agreement into the December 11, 1981 National Agreement. However, the contracting out provisions are the subject of the disputed side letter to the 1981 National Agreement, the December 11, 1981 Hopkins/Berge letter, which modifies the Article IV contracting out provisions of the May 17, 1968 National Agreement. For example, the Article IV obligations on the Carrier were expanded by paragraph 2, page


2 of the disputed letter reading as follows:

    "The carriers assure you that they will assert good-faith efforts to reduce the

incidence of subcontracting and increase the use of their maintenance of way forces to the extent practicable, including the procurement of rental equipment and operation thereof by carrier employees."


In 1981, Conrail and the Organization negotiated a single collective bargaining agreement that superseded the agreements between the various predecessor railroads


See Exhibit 2, Carrier Submission.
                    SBA No. 1016 / Award No. 66-A / Re: Hopkins/Serge Letter


            and the Organization. The parties agreed on their single collective bargaining agreement on August 3, 1981 and further agreed that the new single agreement would become effective on February 1, 1982.

            The parties' single agreement effective February 1, 1982, does not have a separate rule on contracting out, but the agreement's Scope Rulefi contains provisions similar to the contracting out provisions in Article IV of the May 17, 1968 National Agreement.' The provisions concerning contracting out in paragraphs 2 and 3 of the Scope Rule in the single Conrail-BMWE Agreement, effective February 1, 1982, are similar


            to the contracting out provisions in paragraphs 1 and 2 of Article IV of the 1968


          I',

            I', Agreement; the only significant difference between the contracting out provisions in the Scope Rule in the single Agreement and the Article IV contracting out provisions, is that the Scope Rule in the Conrail Agreement stipulates that the contracting out provisions do not apply in emergencies.


                Appendix B of the single agreement effective February 1, 1982, contains

i,

I

            language dealing with the agreements between the predecessor railroads and the


          I~I Organization, that conflict with the agreement effective February 1, 1982. Under Appendix


            B all such conflicting agreements were terminated by Appendix B with the exception of


            ~I~ agreements specifically listed in Appendix B, A. through G.


ii
 Ii
 6 The Scope Rule in the parties' Agreement effective February 1, 1982, is reproduced
 j in full at Appendix page 3.
 FRED BLACKWELL
 ATTORNEY AT LAW ' The Article IV contracting out provisions are set out in full at Appendix page 4.
 P 0. BOX 6095 7
 WEST COLUMBIA
 S.C.29171
 1803)791-AOBS
                    SBA No. 1016 / Award No. 66-A / Re: Hopkins/Berge Letter


                  Appendix B, in pertinent part, reads as follows:


                "'MEMORANDUM OF UNDERSTANDING IN CONNECTION WITH THE AGREEMENT EFFECTIVE FEBRUARY 1, 1982 BETWEEN CONSOLIDATED RAIL CORPORATION AND THE BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES'


                1. The Schedule Agreements of the former component railroads and all amendments, supplements and appendices to these agreements (with the exceptions of those listed below) and all other previous agreements which are in conflict with the Agreement effective February 1, 1982, are terminated:"


          Fin in

          After due assessment and consideration of the foregoing, and the record as a

          whole, the Board concludes that the record does not establish that the disputed

          Hopkins/Berge letter dated December 11, 19981, was preserved by the single Conrail

          I

          BMWE Agreement effective February 2, 1982, and/or that the said letter is applicable on

          the Conrail property.

          It is further found that contrary to the Organization's assertions, the disputed

          I; letter is applicable only to those Carriers that were represented by the NLRC regarding

          the agreement between the Organization and the NLRC to execute the December 11,

          i

          ICI II,1981 Hopkins/Berge Letter. Conrail was not one of those Carrierse and therefore, the

          i

          I' Hopkins/Berge letter cannot be said to apply on Conrail property. Moreover, this finding

          III is not altered by the fact that in a May 5, 1981 Agreement, Conrail agreed to apply the

          j December 11, 1981 National Agreement to Conrail property.

          li


                Here, it is informative to note that the December 11, 1981 National Agreement


          li


FRED BLACKWELL
 ATTORNEY AT LAW 8 See Exhibit 2, Carrier Submission.

P.O. BOX 6095

WEST COLUMBIA,

S.C.29171

16031791.8086

                    SBA No. 1016 / Award No. 66-A / Re: Hopkins/Serge Letter


did not contain any provisions that related to contracting out, nor did it contain any provisions that incorporated Article IV of the 1968 National Agreement into the December 11, 1981 National Agreement. It is also noteworthy that the disputed Hopkins/Berge letter modified the Article IV contracting out provisions in the May 17, 1968 National Agreement; and that the letter did not add any contracting out language to the December 11, 1981 National Agreement. In view of these considerations, there is simply no basis on which the Hopkins/Berge letter could be construed as bringing the letter's contracting out provisions into the December 11, 1981 National Agreement, and from there, into the '' parties' single Agreement effective February 2, 1982.


          It is therefore found that the disputed Hopkins/Berge letter was not applicable i~

          to the Conrail property when it was executed by the Organization and the NLRC on j December 11, 1981, or subsequently.


          However, even if the letter were applicable on Conrail property at the time of its execution on December 11, 1981,9 the letter would nonetheless have been terminated by the provisions concerning "termination" and "survival" of previous agreements in i ;,

            Appendix B of the parties' single Agreement effected February 1, 1982. More specifically,


          ~I Ili and contrary to the Organization's contentions, it is self-evident that the 1968 Article IV


            contracting out provisions, as modified by the disputed Hopkins/Berge letter dated


          III December 11, 1981, are in conflict with the Scope Rule of the single Agreement effective


          '~ February 1, 1982; hence, the letter comes within the purview of, and would be terminated


FRED BLACKWELL
 ATTORNEY AT LAW 9 See the Organization's letter dated August 6, 1991, wherein this contention is made.

P 0. Box 8095

WEST COLUMBIA

S.C. 29171

(9031791-8096

                    SBA No. 1016 / Award No. 66-A / Re: Hopkins/Berge Letter


            by, the Appendix B text that terminates "all ... previous agreements which are in conflict with the Agreement effective February 1, 1982."

            In view of the foregoing, and based on the record as a whole, the answer to the "Question At Issue" must be answered in the negative.


            AWARD:

                The record as a whole does not establish that the disputed Hopkins/Berge

                letter dated December 11, 1981, was preserved by the single Conrail-BMWE

                Agreement effective February 1, 1982, and/or that the said letter is applicable on


          the Conrail property.

          I


                    Accordingly, the answer to the herein "Question At Issue" is

          I'

                                    .,No_,


                    BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016

          i


                            Fred Blackwell, Neutral Member


          ! S. V. Powers, Labor Member J. H. Burton, Carrier Member

          Executed on , 1993

FRED BLACKWELL CONRAJL\1016\HOP-BERG.D31
 ATTORNEY AT LAW
 P.O. Box 6095 10
 WEST COLUMBIA
 S.C. 29171
 19031791-B089