STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
This Division of the Adjustment Board has jurisdiction over the dispute involved herein. _,
Parties to said dispute were given due notice of hearing thereon.
This dispute is one of a series concerning the Carrier's action in contracting to outside firms the work of repair of public crossing over the Carrier's tracks. As will be discussed further below, the Carrier emphasizes that the work involved the application of hot asphalt, rather than cold patching of crossings.
There is, preliminarily, one major procedural matter to be resolved. After the answer of the Carrier's highest level of authority, the Carrier undertook to send this dispute to the Board for resolution. The organization brought this same dispute to the Board at a later time, but within the required nine-month period following the Carrier's last reply in the claim handling procedure.
The Carrier argues that the Organization has thus "pyramided" the dispute by bringing its case to the Board. On this basis, the Carrier seeks a dismissal award. The Board finds the Carrier's objection without merit. Pyramiding is objectionable where one party seeks to have a single dispute resolved by the processing of more than one claim.
In this instance, the Claim was initiated on the property by the Organization. The Carrier, for whatever reason, brought the Organization's Claim to the Board. while the Carrier had the right to do so, this clearly cannot be found to prohibit the Organization from bringing its own dispute to the Board.
Under these circumstances, the Board finds it appropriate to resolve the matter on the basis of the Organization's filing with the Board. (The claim as submitted by the Carrier will be separately resolved on a procedural basis. See Third Division Award 30532.)
The record shows that the Carrier provided advance notice of its intention to contract for work at a number of grade crossings. The Organization argues that such notice is insufficient, based on the lack of detailed information concerning each instance of proposed work. The Board finds, however, that the notice and subsequent meeting fulfilled the contractual requirements of the Scope Rule, which reads in pertinent part as follows: Form 1 Award No. 30540
As a further preliminary matter, the Organization relies. to some degree on the additional responsibilities placed on carriers under the so-called Berge-Hopkins letter of December li, 1981. The issue of whether the Berge-Hopkins is applicable has now. been resolved in an Award which is confined solely to this question. Public Law Board No. 1016, Award 66-A, issued on January 18, 1993, found that the Berge-Hopkins letter is not applicable on this Carrier's property.
The Board has been provided with numerous Awards, on this property and elsewhere, concerning work performed on grade crossings as well as other types of contracted work. The Organization bears the burden of demonstrating that the work is covered by the Scope Rule and/or that the work has regularly been performed by maintenance of Way employees. As a part of its proof in this regard, the organization points to Special Board of Adjustment No. 1016, Award 10 (and, to similar effect, Awards li and 12) involving the same partied:- Award 10 states in pertinent part as follows:
These sustaining Awards obviously support the Organization's claim to "paving (blacktop) and related clean-up." Special Board of Adjustment No. 1016, Award 10 also takes note of the Carrier's failure to provide the required advance notice (contrary to the situation here under review). More significantly, Award 10 does not offer a precise description of the type of crossing work which was involved.
Here, the Carrier emphasized in the on-property claim handling and in its Submission that what is involved here is "hot asphalt" highway crossing work, which it distinguishes from routine coldpatching. The Carrier asserts that th regularly been contracted and has not been performed by Maintenance of Way forces. The Organization has demonstrated that black top work generally is covered under the Scope Rule (as found by the above-cited Special Board of Adjustment No. 1016 Award). There is no support, however, for the view that Maintenance of Way forces have been used for "hot asphalt" with any frequency or regularity. This was a point stressed in the on-property handling of this dispute. As one example, the Carrier's letter of June 28, 1990 stated:
The voluminous record provided by the parties does not offer persuasive evidence in contradiction to this statement.
As stated in Third Division Award 27629 involving the same parties, but involving a different type of work:
The Carrier points to the special equipment (rollers, etc.) required for this type of work, as well as the skills required to operate such equipment. The parties are in dispute as to whether equipment could be leased in order to have Carrier forces perform the work. Given the extent of the hot asphalt paving program at the time, it is unreasonable to assume that leased equipment could be made available for this paving project encompassing many different locations.
In sum, timely notice was given to the organization concerning the projected work. There is convincing evidence that the "hot asphalt" work has not been regularly performed by Carrier forces and is not contractually reserved to them. This finding is not intended to contradict the Special Board of Adjustment No. 1016 Awards, but it is based on the particular aspect of crossing work which is involved here.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 30540. DOCKET MW-30707
(Referee Marx)
The Majority committed several serious errors reaching its decision in the instant dispute. Moreover, this award conflicts with established precedent on this property concerning an identical situation. An award based on erroneous reasoning is of no value as precedent and dissent is therefore required. This dissent will focus on the fundamental errors of reasoning and will not address those errors which do not appear to have had a significant impact on the Majority's ultimate disposition of this case. Failure to address those additional errors should not be taken as acquiescence thereto.
This Board has recognized in innumerable awards the value of well-reasoned precedent, not only in settling the immediate cases brought before it, but also to fulfill the purposes of the Railway Labor Act to effect the prompt and orderly settlement of disputes by settling issues between the parties with some degree of finality. In this connection, attention i 14508 of this Division:
The subject of the instant claim was the work of renewing grade crossings and, specifically, the asphalt paving associated therewith. In the instance involved here, Carrier Maintenance of Way forces renewed the track structure through certain grade crossings. Thereafter, instead of assig to perform the final step of grade crossing renewal, paving of the crossings with blacktop (asphalt) and cleanup of the sites, the Labor Member's Dissent
Carrier assigned an outside contractor to perform this work in violation of the Agreement.
This is not the first time that the issues involved here have arisen between these two parties. In fact, the issues involved in this dispute were addressed by Special Board of Adjustment No. 1016 in Awards 10, 11 and 12, which found that asphalt paving is reserved to Maintenance of Way employes Agreement between the parties hereto. Based on the findings of Special Board of Adjustment No. 1016, and absent a finding that said awards were palpably wrong, the Board should have applied the principle of stare decisis and sustained the claim.
In light of the foregoing, it is significant that the Majority did not find Awards 10, 11 and 12 of Special Board of Adjustment No. 1016 to be palpably wrong but, rather, specifically stated that "this finding is not intended to contradict the SBA 1016 Awards." However, instead of applying stare decisis and sustaining the claims, the Majority here erroneously found there to be a distinction between the work involved here disputes leading to Awards 10, il and 12 of Special Board of Adjustment No. 1016.
In the dispute settled by Award 10 of Special Board of Adjustment No. 1016, which involved the p Labor Member's Dissent
phalt, the Carrier argued that there was a distinction between the work of patching asphalt crossings and the work of paving asphalt crossings and urged that Maintenance of Way employes only performed patching work. However, Special Board of Adjustment No. 1016 did not find a distinction, but found the "... paving (blacktop) and related clean-up at grade crossings ***" involved in that dispute to be scope covered work.
In the instant case, the Carrier came to this Board with the same argument, that there was some fundamental difference between the work of patching and paving asphalt crossings. Here the Carrier attempted to base this argument on the fact that asphalt patching is often performed using cold asphalt and paving of entire
surplus asphalt which is left over from a previous (hot) paving job. Hot asphalt is much more easily spread, compacted and smoothed and adheres much more readily to existing paving than cold asphalt. For those reasons, although it is the exact same material and exactly the same skills and equipment are used for cold patching and hot paving with asphalt, ho for paving work, including patching. The reason that cold asphalt is often used for patching is simply because it is impractical to keep hot asphalt readily available for use in small quantities.
Asphalt is asphalt and the Majority here should have refused to draw the erroneous distinction urged by the Carrier.
After citing Awards 10, 11 and 12 of Special Board of Adjustment No. 1016, as noted above, the Majority went on to find that:
It is interesting that the Majority found it "significant" that Award 10 of Special Board of Adjustment No. 1016 did not offer a precise description of the type of crossing work which was involved. Asphalt crossings are paved w Board of Adjustment No. 1016 found the contracting out of such work to be in violation of the Agreement. While Award 10 does not include the magic words "hot asphalt", precise it would have needed to be for the Majority in this case to have reached the conclusion that "paving (blacktop)" includes cold patching and hot paving. Obviously, both endeavors are subsumed under the more general heading of "paving (blacktop)", which Special Board of Adjustment No. 1016 found to be reserved to Maintenance of Way employes under th Labor Member's Dissent
Notwithstanding that the majority was wrong to find a distinction between hot and cold asphalt p should have had no bearing on the final resolution of this case. It has often been held that it is the work which is the subject of the Agreement and the work is not removed from the Scope of the Agreement merely because the Carrier wishes to have the work performed by using certain methods or machinery. See Third Division Awards 28486, 28590 and Award 54 of Public Law Board No. 1844. The work involved here was asphalt paving and the Carrier's determination to have the asphalt paving performed by the specific method of hot application would not serve to remove the work.from the Scope of the Agreement in any event.
In addition to the foregoing, the Majority also erred where it held:
It should be noted that here the Majority correctly characterized the Carrier's position relativ practice of contracting out this work as an assertion. It is so Labor Member's Dissent
well established that the party asserting a controlling practice must meet the burden of proving such a practice existed and represent a mutually agreed interpretati supporting this principle are unnecessary. In this case, the Carrier's assertion of a past practice remained unsupported by any probative evidence during the entire handling of this dispute on the property. However, elsewhere within the award, the Majority states:<
This finding is wrong. Apparently, the Majority did not adequately scrutinize the Carrier's alle because, if it had, it would have found that although the Carrier did supply records indicating it had contracted out some asphalt paving work in the past, the incidents referred to therein occurred after the dispute addressed in Award 10 of Special Hoard of Adjustment No. 1016 arose. Furthe the Carrier, some of which are the very claims addressed in this series of awards. For example, all of the incidents involved in this award, which the Majority chose as its lead case, are included in the Carrier's alleged past practice evidence. It is well established that citation of repeated Labor Member's Dissent
serve as probative evidence of a controlling practice. This is especially true here, where the organization has repeatedly objected to the same kind of violations evidence of a practice occurred and has filed claims involving the very incidents the Carrier attempts to use to support its claim of a past practice. In view of the foregoing, there can be no question but that the Carrier failed to m existence of a controlling past practice in this case.
Under this Agreement, the relevant standards for finding scope coverage are whether the work is generally recognized as Maintenance of Way work and/or whether the Maintenance of Way employes as of the effective date of the Agreement. The parties have agreed that Maintenance of Way employes. If Maintenance of Way employes customarily perform certain work or if they performed that work as of the effective date of the Agreement, such work is scope covered. Presumably the Majority attempted to determine whether the Organization had established customary pe to prove scope coverage and its finding that there was no support for the view that Maintenance of Way forces have been used for "hot asphalt" work with any frequency or regularity was a determination relative to the customary performance test. However, in reaching Labor Member's Dissent
the conclusion it did in this regard, one must assume that the Majority overlooked the written statements in the record from 103 current and former employes of Conrail and its predecessors as evidence of the fact that Conrail Maintenance of Way employes customarily performed asphalt paving (both hot paving and cold patching) whenever such work was required. Perhaps the most striking feature of the Majority's finding is that Special Board of Adjustment No. 1016 was presented with 53 of the same written statements and found them sufficient to conclude that paving crossings was scope covered work and that assigning such work to outsiders was a violation of the Agreement which required a sustaining award. The following are typical of the statements which, were supplied to the Carrier during the handling of this dispute and presented to this Board for consideration:
The above-quoted statements clearly show that Maintenance of Way employes customarily perform hot asphalt paving work on this property.
Finally, the most basic fallacy contained in this award occurs where the Majority applies the erroneous distinction between hot and cold asphalt paving. First the Majority finds that blacktop work generally is covered under the Scope Rule. This finding is obviously correct. As discussed above, however, the Majority went on to find that there is no support for the view that Maintenance of way forces have been used for "hot asphalt" work with any frequency or regularity and concludes b basis.
Aside from the fact that, as shown above, the finding that there is no support for the view that Maintenance of Way forces have been used for "hot asphalt" work with any frequency or regularity is wrong, even if it were cor this determination is not logical. The following summary of the Majority's line of "reasoning" clearly shows the fallacy embodied therein: Labor Member's Dissent
Obviously the conclusion of the Majority cannot logically be reached from the premises set forth. Hence, the Majority's conclusion is based on a fallacy. This award is largely based on that erroneous conclusion and an award based on a fallacy is palpably erroneous and without value as precedent.
In view of the foregoing, as well as the errors which were not discussed herein, it is obvious that the findings of the Majority are grievously in error and of no value as precedent.
Carrier Members Concurring Opinion
to Award 30540 and
Reply to the Organization's Dissent
to Awards 30540, 30521. 30537,
30538,30539, 30541, 30542,
30543,30544
Award No. 30540 is the product of a multitude of claims, extensive on-property discussions. and exhaustive reseatsh by both the Carrier and the Organization. The record in the cases before the Board, resulting in Award 30540, as well as companion Awards 30521. 30537, 30538, 30539, 30541, 30542, 30543, 30544, was far more extensive than that before SBA 1016 in Award No. 10; and the argument more complete. Neither party can claim not to have had a fair opportunity to make its case. The Employees failed in their efforts to rewrite the long standing practices on this property, and thus cry "erroneous reasoning": they failed in their burden of establishing a contractual violation and thus cry "no value as precedent." In fact the Neutral, no novice to impassioned pleas, should be commended for wading through a mountain of material, and understanding correctly the pertinent facts and burdens of proof.
In Award 30540, as well as in the Awards listed above, the majority correctly analyzed three crucial points: first, the nature of the work in dispute; second, the fact that the Carrier gave notice to the Organization as provided in the Scope; and, third, the Organization's burden of proof.
Throughout the handling of this and earlier paving disputes, the Carrier has consistently maintained that the work of paving highway crossings had not accrued to the BMWE and has been consistently contracted, although the Carrier's forces have, at times, performed temporary patching work. This distinction was clearly stated in the Senior Director's letter of July 16, 1992 (a part of the record in Award 30542);
The majority made a basic funding in applying the factual record to the agreement, i.e.. the Organization can lay claim to cold patch or black top work but it cannot lay claim to "hot asphalt" work.
The second key element in these cases, all but ignored by the dissent, is the fact that notice of contracting was given to the Organization. Unlike the cases leading to Awards 10-13 of SBA 1016, the Carrier in the instant paving cases gave notice and met and discussed the issues with BMWE representatives. This information exchange included a detailed cost analysis and review of leasing options. These actions met the Carrier's obligations under the Scope.
Finally, the Dissent is so taken with its outrage that it even confuses the fundamental burden in this or any rules case. The Scope rule is silent on paving (hot, cold or otherwise) and clearly the Organization has the burden of establishing both coverage by the Scope and a contractual violation. The Majority's conclusion that the Employees have failed to demonstrate a consistent practice of performing the disputed work of hot paving is hardly shown to be erroneous by the Dissent's quotation of eight statements, only two of which make any mention of hot paving. In the Dissent's view, the Organization's failure of proof becomes the Majority's erroneous conclusion.
Labeling an Award "palpably erroneous" does not make it so. The Majority's findings and well reasoned conclusions stem from a voluminous record aided by both sides' presentation of its best case. Award 30540 will indeed be of precedential value.
The reasons for which the above-captioned awards are palpably erroneous are thoroughly explained within the Labor Member's Dissents thereto and there is no reason to repeat all of them here. However, exception is taken to the Carrier Members' statement that the Dissent is so taken with its outrage that it even confuses the fundamental burden in this or any rules case. ***" First of all, the tone of the Dissent to Award 30540 can hardly be characterized as one of outrage. Secondly, is no confusion as to the fundamental burden of proof in this case. Clearly, the Organization's burden was to show that the work involved was reserved to the Employes u vague, Award 30540 was denied on the basis of the erroneous finding that the work was not scope covered). What work is covered under the scope of this Agreement? We look to the Scope Rule to find out:
The parties have agreed that generally recognized Maintenance of Way work is that which is "customarily" performed by Maintenance of Way employes. If Maintenance of way employes customarily perform certain work or if they performed that work as of the effective date of the Agreement, such work is scope covered. Clearly, the burden is on the organization to prove either (1) that the work is generally recognized as Maintenance of Way work or (2) that the work was that which, as of the effective date of this Agreement, was being performed by these employes. There is not a burden "to demonstrate a consistent practice" under this Agreement, notwithstanding the position the carrier me erroneous because it is not one of the standards to which the parties have agreed.
Even though proof of only one of the criteria cited within the Scope Rule is sufficient to establish scope coverage, the Organization proved both that its members subject work and that the work was that which was being performed by Maintenance of Way employes as of the effective date of the Agreement. This was done by the submission of written statements Labor Member's Response
from one hundred three (103) current and former Conrail Maintenance of way employes. For the Carrier Members' edification, the quotation of eight (e) employe statements within the Dissent was not meant to prove 1*** a consistent practice of performing the disputed work ***° (a burden the Organization did no Dissent, but was merely to show a representative sample of the evidence of customary performance of work as of the effective date of the Agreement, which the majority erroneously overlooked in favor of the Carrier's unsupported assertions.
The Organization having met its burden, as discussed above, it was the Carrier which then asserted the defense that a controlling past practice of contracting out paving of crossings existed in opposition to the proven scope coverage. As the party asserting a controlling past practice, the Carrier then had the burden of proving such a practice. The Carrier c evidence of the existence of such a controlling practice. That the Carrier had such a burden of proof of a controlling practice is supported by a plethora of awards of this Board.
If there is one point in the carrier Members' Response on which we can agree, it is that merely labeling an award "palpably erroneous" does not make it so. However, the Labor Member's Dissent did not merely label awards palp Labor Member's Response