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 employe 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. Form 1 Award No. 29685
Parties to said dispute waived right o.f appearance at hearing thereon.
At issue in this dispute is the propriety of Carrier's actions in using employees from another bargaining unit to supplement the DTSL bridge gang in the performance of certain bridge maintenance work.
Carrier is the Grand Trunk Western (GTW) Railroad. It is made up of the former GTW, the former Detroit, Toledo and Ironton (DTI) and the former Detroit and Toledo Shore Line (DTSL) Railroads. The operation of the three former railroads has been consolidated under the single GTW corporate identity since 1982. However, employees represented by the organization continue to work under the three separate agreements of their former railroads.
At the time of the disputed work, Carrier's B&B force on the former DTSL consisted of two active employees. A third employee on the seniority roster, the only other employee holding seniority, was offered recall from furlough for the project, but he declined the recall.
There is no dispute that the bridge maintenance work involved was within the scope of the DTSL Agreement.
Carrier provided the Organization advance notice of its intent to use a GTW B&B to supplement the two DTSL employees in performing the work of installing prepaneled bridge ties and walkway on a bridge located on the former DTSL territory. It asserted that supplementing the two-man DTSL gang was in compliance with Rule 52 (m) of the effective Agreement. It said such action was necessary to accomplish the work safely and to minimize the time of the track outage. Discussions between the parties ensued, but no accord was reached.
During the progress of the work, it was noted that several walkway timbers needed replacing. Carrier had appropriate timbers in stock in the former DTI territory. Accordingly, it used former DTI employees to deliver and precut the timbers. The DTI employees did not otherwise participate in the installation of the timbers.
The two-man DTSL gang worked on the project throughout. They were augmented on three of the four workdays in dispute by three GTW employees. On the second of the four days, they were augmented by five GTW and three DTI employees. When the major portion of the task was completed, the GTW employees were pulled off and the two DTSL employees finished up the job. Form 1 Award No. 29685
Rule 52 (m) of the parties' Agreement is a two-paragraph provision dealing with contracting of w express definition of the meaning of the term "contract." The first paragraph deals with situations where the Carrier does have adequate and available forces and equipment. It requires notice, conference, and the reaching of an understanding about carrying out the work. The second paragraph states as follows:
In analyzing this dispute, we have confined our consideration, as we must, to the information and contentions exchanged and argued by the parties on the property.
On the merits of the dispute, the Organization contends the carrier's actions were an impermissible removal of work from
seniority district boundaries. In addition, it says Carrier may not cast its actions as a contracting matter under Rule 52(m). It says prior decisions, specifically Awards 59-63 of Public Law Board No. 1837, involving other parties, found the same facts to be seniority district violations. The organization also argues that the Carrier has an affirmative obligation to maintain a sufficient workforce. In this regard, it notes that Carrier did no B&B hiring in the twenty years prior to this dispute.
Carrier contends, in essence, that Rule 52(m) permitted its actions. Moreover, it notes that the Rule imposes no requirement that it cannot use other qualified employees outside of the bargaining unit.
The record here consists almost exclusively of assertion and counter assertion. It is undisputed, however, that Carrier used 100$ of its available DTSL B&B force to work on the project. They were not assigned to work elsewhere.
We have reviewed the parties' competing contentions about the adequacy of the two-man DTSL gang to perform the entire project by itself. Based on the limited record available on this point, we find nothing unreasonable about Carrier's conclusion that the twoman force was inadequate for the ta considerations of safety and efficiency. Form 1 Award No. 29685
One of the Organization's contentions, however, is that Carrier has deliberately allowed the DTSL B&B force to wither through attrition. It says, in effect, that Carrier's inactions made the force inadequate. We regard this assertion as a very serious contention which, if proven, could be pivotal in the outcome of this dispute. The record, however, contains no such proof. Carrier asserted the two-man B&B gang was sufficient for its day-to-day needs. The organization made no effective response. On the limited record before us, we have no factual basis for concluding that the Carrier intentionally
In view of the foregoing analysis, it follows that Carrier was entitled to avail itself of the contracting rights provided by Rule 52(m). It remains for determination whether the use of in-house employees from another bargaining unit violated the provision.
As noted earlier, the Organization cites Public Law Board No. 1837 Awards 59-63 in support of the proposition that use of em-
ployees working under a separate agreement of a different component railroad do not constitute "contracting out." We have carefully reviewed the cited cases and find we cannot accept the organization's interpretation of those decisi that all five cases were decided on the issue of unavailability. The Board there rejected the Carrier's contention that its forces were unavailable because it had assigned them to work elsewhere. The first three decisions did not deal, even tangentially, with an issue of contracting. The latter two make clear that no contention of contracting had been made by the Carrier. Any discussion of contracting appears to be dicta at most. Finally, the text of the decision does not allow us to conclude that the disputes there involved a provision identical to Rule 52 (m) as we here.
Based solely on the limited record before us, and confined strictly to this claim, we find the posture of the "contracting" portion of the dispute to be one of first impression. We do not have available to us any prior interpretations of Rule 52(m).
Throughout the handling of the dispute on the property, the Carrier repeatedly asserted that its intended and actual supple-
mental use of qualified railroad employees outside of the bargaining unit was a proper applicati
comment that Carrier's interpretation of the Rule was "ridiculous," a response made during the n discussions on the property, the Organization made no other effective rebuttal of carrier's assertion.
Form 1 Award No. 29685LABOR MEMBER'S DISSENT
TO
AWARD 29685. DOCKET MW-29684
(Referee Wallin)
The decision reached by the Majority in this docket is at best specious and certainly palpably erroneous. The only redeeming factor was that the Referee limited the application of the award, i.e., "Based solely on the limited record before us, and confined strictly to this claim ···~'
The Carrier's Ex Parte Submission clarifies how the corporate structure came into being:
The author of this award, in essence, scribed that same language on Page 2 of the award (third paragraph).
The operative phrase is "·*· consolidated into a single corporate entity since 1982 *~*" If the Carrier is a single corporate entity, then how can it contract out work with itself? Blacks Law Dictionary defines contract thusly: Labor Member's Dissent
It is apparent that at least two (2) parties are needed to consummate a contract. If the Carrier exists as a single corporate entity, then with whom or what did it consummate a contract? There was no evidence presented in this docket that the Carrier contracted with anyone to have this work p was to have employes covered under one Agreement, which reserves work within seniority districts to employes with seniority confined thereto, to perform work on a seniority district covered by another Agreement which also confines seniority by district. This was simply a claim where employes covered by one Agreement were used on a seniority district where they had no seniority and no contractua Labor Member's Dissent
CARRIER MEMBERS' RESPONSE
TO
LABOR MEMBER'S DISSENT
TO
AWARD 29685, DOCKET MW-29684
(Referee Wallin)
On the property, before the Board, and in its dissent to the award, the Organization has taken the incongruous position, not that the Carrier could not contract out the work under the terms of the DTSL collective bargaining agreement, but that the terms of the agreement required the carrier to go outside of its consolidated corporate workforce. The Board found that the Organization had failed in its burden of proving that assertion. The relevant portion of the applicable rule reads:
At the time the rule was negotiated, "company" was the DTSL, which is now the Shore Line Subdivision of the consolidated Grand Trunk. In spite of the fact that the GTW, DTSL and DTI have been merged since 1983, and in spite of the fact that effective June 18, 1990, the National Mediation Board held that the Grand Trunk is a single transportation system and that the Brotherhood Maintenance of Way Employes represents the employees of the craft on a system-wide basis, the employees of the former carriers continue to work under the collective bargaining agreements negotiated with the former carriers.
The former DTSL agreement has no application beyond Shore Line Subdivision, and though the Grand Trunk is now the company obligated to comply with the agreement, that does not expand the scope of the agreement's coverage beyond the "forces" of the DTSL. The rule, therefore, must be read "the company will contract for work for which Shore Line Subdivision forces are
CM Response to Labor Member's Dissentneither adequate nor available." In this case, the Shore Line Subdivision B&B gang was inadequate; the company supplemented the gang with available men and equipment from the Grand Trunk.
The Organization's attempt to rely on Black's Law Dictionary definition of "contract" demonstrates the weakness of its position, and, in fact, the quote is not accurate. There is no language in the collective bargaining agreement on which the Organization could rely and no logic to an argument that, if it prevailed, would have the Carrier furloughing members of the Organization on one portion of the railroad while exercising its right to contract work outside the scope of the collective bargaining agreement and its corporate workforce to some private company. The Carrier went outside the scope of the collective bargaining agreement with the employees of the former DTSL in accordance with the rule permitting it to do so under these circumstances.
The Organization did not and could not prove the claim it made before the Board and the Board properly denied the claim on that basis.