Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28654
THIRD DIVISION Docket No. MW-28794
91-3-89-3-196
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces to perform bridge repair work on the bridge located at 198.7 on the
River Sub, Old Eastern Division beginning September 8, 1987 through October
30, 1987 (Carrier's File 870954 MPR).
(2) As a consequence of the aforesaid violation,
B&B Carpenters
J. C. Boyer, C. R. Caton, J. W. Penrod, D. L. Fall and
B&B Motorcar
Operator
S. Farastar shall each be allowed:
'...
eight (8) hours per day, per Claimant
and including any overtime and Holiday pay,
and any additional expense incurred by these
furloughed employees that would normally be
covered by benefits paid by the Carrier. *** "'
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes 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.
Parties to said dispute waived right of appearance at hearing thereon.
On April 20, 1987, Carrier advised the Organization of its intent
to contract one deck girder span and one truss span on Bridge No. 198.7. The
parties conferred on the matter but reached no agreement. They could not
agree that the work was within the exclusive scope of the basic Agreement and
when Carrier proceeded with its plans, the instant Claim was submitted.
Form 1 Award No. 28654
Page 2 Docket No. MW-28794
91-3-89-3-196
Carrier denied that the work in question was reserved exclusively to
the members of the Organization and recited that contractor's forces have
performed such service without protest.
We do not agree that giving notice under the Hay 17, 1968 Agreement
is a concession that the work in question is solely within the exclusive
province of the Organization. The very wording of the Agreement militates
against such a conclusion. If a Carrier plans to contract out work of a type
which may arguably come within the Organization's jurisdiction of work, it has
agreed to notify the General Chairman so that he may request a meeting in the
hopes of reaching an understanding. In the absence of such an understanding
the Carrier may proceed with the contracting and the Organization may file and
progress claims. Nothing in the Agreement "...shall affect the existing
rights of either party in connection with contracting out. Its purpose is to
require the carrier to give advance notice
...."
If the giving of notice were an automatic concession, there is a lot
of excess verbiage in the Agreement since it would be, in essence, a total
contracting out prohibition. Further, failure to give notice would be a basis
for a finding of a.violation of the basic Scope Rule, rather than just a violation of the notice req
are to the contrary.
Here, Carrier gave notice and conferred. Thus there is no violation
of the May 17, 1968 Agreement, nor do we find an actionable disregard of the
December 11, 1981 Letter of Understanding.
Turning to the question of a violation of the basic Scope Rule, we
have noted the conflicting assertions of job possession. We do not deny, from
our review of the record, that the type of work in question may be within the
capabilities of the Claimants. But that is not the test under a general Scope
Rule. Carrier presented documentation, on the property, that it has contracted out this type of work
contracting out does not aid it in its requirement to show that it has performed this type of work h
all others.
A W A R D
Claim denied.
Form 1 Award No. 28654
Page 3 Docket No. MW-28794
91-3-89-3-196
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. - Executive Secretary
Dated at Chicago, Illinois, this 29th day of January 1991.
LABOR MEMBER'S
DISSENT
TO
AWARD 28654, DOCKET NW-28794
(REFEREE SICKLES)
In the first sentence of the first paragraph of the award, the
majority correctly determined that the Carrier had given the
organization written advance notice of its intent to contract out
certain bridge work and that a conference was held. The remainder
of the award misrepresents the record and incorrectly applies a
theory of exclusivity. Hence, the award is palpably erroneous and
of no precedential value.
From a reading of the award, the impression is given that the
Organization argued that its members had performed this work to the
exclusion of all others, including contractors. Nothing could be
further from the truth. The Organization argued that work of the
character involved in this dispute had been customarily and
traditionally performed by the Carrier's Bridge and Building
Subdepartment employes and presented evidence thereof through
statements of former and present employes. The Majority tacitly
admits that, i.e., "*** We do not deny, from our review of the
record, that the type of work in question may be within the
capabilities of the Claimants. ***" However, it then asserts that
under a general Scope Rule, the Organization must show that it has
performed this work historically and traditionally to the exclusion
of all others. That theory, if it has any validity at all, has
Labor Member's Dissent
Award 28654
Page Two
been applied to class or craft disputes, i.e., ^*** The exclusivity
doctrine, however, applies when the issue involves a challenge to
the Carrier's right to assign work to different crafts and/or
classes of employees." Third Division Award 28692.
Therefore, I dissent.
Respectfully submitted,
I
D. Bartholomay
LE,
aborr Me=mber
CARRIER MEMBERS' RESPONSE
TO
ORGANIZATION MEMBER'S DISSENT
TO
AWARD 28654, DOCKET MW-28794
(Referee Sickles)
It is remarkable that at this late date the
organization would express surprise, and disappointment, and
disagreement at the Board finding that the so-called
"exclusivity" doctrine is applicable in disputes involving
the issue of whether a Carrier has the right to contract out
work. The following are only some of the Awards and
Referees agreeing with the Majority in this case. Third
Division Awards: 28468 (Goldstein), 27626 (Roukis), 27608
(Benn), 27040 (Zusman), 26676 (Lieberman), 26711 (Suntrup),
26565 (Meyers), 26301 (Vernon), 25370 (Scheinman), 24853
(Cloney), 23423 (LaRocco), 23303 (Dennis).
It also is remarkable that Third Division Award 28692
cited by the Organization for the contrary proposition
involved the issue of the Carrier's failure to provide
notice of its intent to contract out work. It did not
involve the right of the Carrier to contract out work where
notice is not an issue. Thus, Award 28692 has nothing to do
with the Ma'ority fi ing in this case.
&J4
Fiifge:rh M. es
i el
) IPA&lr
~V~
R. L. Hicks P. V. Varga
..^s
. y 41
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' RESPONSE
TO
ORGANIZATION MEMBER'S DISSENT
TO
AWARD 28654, DOCKET MW-28794
(Referee Sickles)
In the second paragraph of their response, the Carrier members
point out that Third Division Award 28692 involved the issue of a
Carrier failing to provide notice of its intent to contract out
work and as a consequence, that award has nothing to do with the
Majority finding in this case. However, in the first paragraph,
the Carrier members cite twelve awards which they contend support
the position that exclusivity applies to contracting out of work
disputes. Of the twelve, two are "notice cases", seven do not
mention or have the work exclusive in them (customarily, historically or traditionally are used) and
situations where the Organization was unable to establish that the
work had ever been performed by members of the Organization. While
many factors were considered in each of those awards, the Carrier
Members appear to be painting all denial awards on the issue of
contracting with the same brush, i.e., exclusivity. This concept
is not relevant to contracting cases and as far as this Member is
concerned, has no place in deciding any cases at the NRAB.
At Page 2 of Award 28692, the majority held that:
"This Board has consistently rejected the proposition that a Carrier must notify the General Chairma
when the work in question is exclusively reserved to the
Organization. The language of Rule 41 and like provisions was written to provide the General Chairma
- 2 -
"opportunity to discuss the circumstances of the contemplated assignment of work to outside cont
this matter, the Carrier has cited a number of Awards
dealing with the jurisdictional right to a type of work.
The exclusivity doctrine, however, applies when the issue
involves a challenge to the Carrier's right to assign
work to different crafts and/or classes of employees.
Rule 41 cannot be read so as to infer that work
within the scope means work reserved exclusively to the
organization by history, custom, or tradition. This
record indisputably establishes the Organization has
performed the work in question. Additionally, the
Carrier ignores the obvious implication of Rule 35 1/2,
therefore, this Board finds the Carrier violated the
Agreement when it failed to notify the General Chairman
of its plan to contract out the blacktopping performed on
October 14, 15, and 16, 1987."
The last sentence of the first paragraph clearly states that ^'·*
The exclusivity doctrine, however, applies when the issue involves
a challenge to the Carrier's right to assign work to different
crafts and/or classes of employees." What could be clearer? When
the Carrier chooses to assign a particular craft or class of
employes to perform a certain task, there is no Agreement requirement of prior notification or advis
the work being performed. Hence, Award 28692 clearly supports the
Organization's position that the exclusivity theory does not apply
to contracting out of work cases.
Respectfully submitted,
DA
Bartholoma
Lr,~; =
abor Member
CARRIER MEMBERS' RESPONSE
TO
LABOR MEMBER MEMBER'S RESPONSE
TO
CARRIER MEMBERS' RESPONSE
TO
ORGANIZATION MEMBER'S DISSENT
TO
AWARD 28654, DOCKET MW-28794
(Referee Sickles)
Without further belaboring the issue of the industrywide applicability of the so-called "exclusi
in contracting out disputes, suffice it to say that this
Award decides the issue with finality insofar as the parties
to this dispute are concerned.
Z'.
M. !Finpurhul
444i