Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No.
32225
Docket No.
MW-31312
97-3-93-3-337
The Third Division consisted of the regular members and in addition Referee W.
Gary Vause when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Seaboard Coast
( Line 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
(Davis Construction Company) to perform Maintenance of Way
work (removal and replacement of fill material on the Carrier's
right of way using a
2'/s
yard front end loader and dump truck) near
the west end of the Shops at Uceta Yard, Tampa, Florida on
Monday, October 15,
1990
and continuing through and including
Friday, November
23, 1990
(System File
90-123/12 (91-272) SSY1.
(2)
The Carrier also violated Rule
2,
Section 1 when it failed to confer
with the General Chairman and reach an understanding prior to
contracting out the work in question.
(3)
As a consequence of the violations referred to in Parts (1) and/or
(2)
above, furloughed Maintenance of Way General Subdepartment
Group A Machine Operator D. F. Weltzbarker shall be allowed two
hundred twenty-four
(224)
hours' pay at the Maintenance of Way
General Subdepartment Group A Machine Operator's straight time
rate and sixteen (16) hours' pay at the Maintenance of Way General
Subdepartment Group A Machine Operator's time and one-half
rate for the total number of man-hours expended by the outside
forces performing the subject work."
Form 1 Award No. 32225
Page 2 Docket No. MW-31312
97-3-93-3-337
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
Claimant established and holds seniority as a Group A Machine Operator in the
Maintenance
of
Way General Subdepartment. On the date that this dispute arose, he
was furloughed awaiting recall to the Carrier's service.
Beginning on Monday, October 15, 1990 and continuing through and including
Friday, November 23, 1990 the Carrier assigned an outside concern (Davis Construction
Company) to perform the maintenance work
of
removal and replacement of fill material
on the Carrier's right-of-way using a two and one-half yard front end loader and dump
truck near the west end of the Shops at Uceta Yard, Tampa, Florida. One employee of
the outside concern used a large front end loader and dump truck. The Organization
asserts that this equipment is of the type customarily and traditionally operated by
Maintenance of Way General Subdepartment employees, such as the Claimant, to
accomplish this kind of maintenance work. The employee of the outside contractor
expended total time performing said work of 224 straight time hours, and 16 overtime
hours on designated holidays falling on November 22 and 23, 1990.
The Organization asserts that work of the character involved here is encompassed
within the Scope of the Agreement and has traditionally, customarily and historically
been performed by the Carrier's Maintenance of Way and Structures Department
employees.
Form I Award No. 32225
Page 3 Docket No. MW-31312
97-3-93-3-337
The Carrier assigned said work to the outside contractor without notifying the
General Chairman and without extending any effort to consummate an agreement
setting forth the conditions under which the work would be performed.
The Organization argues that this course of conduct by the Carrier violated Rule
2, which provides:
"RULE 2
CONTRACTING
This Agreement requires that all maintenance work in the
Maintenance of Way and Structures Department is to be performed by
employees subject to this Agreement except it is recognized that, in specific
instances, certain work that is to be performed requires special skills not
possessed by the employees and the use of special equipment not owned by
or available to the Carrier. In such instances, the Chief Engineering
Officer and the General Chairman will confer and reach an understanding
setting forth the conditions under which the work will be performed.
[Emphasis added.]
It is further understood and agreed that although it is not the
intention of the Company to contract construction work in the
Maintenance of Way and Structures Department when Company forces
and equipment are adequate and available, it is recognized that, under
certain circumstances, contracting of such work may be necessary. In such
instances, the Chief Engineering Officer and the General Chairman will
confer and reach an understanding setting forth the conditions under
which the work will be performed. In such instances, consideration will be
given by the Chief Engineering Officer and the General Chairman to
performing by contract the grading, drainage and certain other Structures
Department work of magnitude or requiring special skills not possessed by
the employees, and the use of special equipment not owned by or available
to the Carrier and to performing track work and other Structures
Department work with Company forces."
Form 1 Award No. 32225
Page 4 Docket No. MW-31312
97-3-93-3-337
The Organization also argues that the Letter of Agreement dated December 11,
1981, also is relevant:
"December 11, 1981
Mr. O.M. Berge
President
Brotherhood of Maintenance of Way Employes
12050 Woodward Avenue
Detroit, Michigan 48203
Dear Mr. Berge:
During negotiations leading to the December 11, 1981 National
Agreement, the parties reviewed in detail existing practices with respect
to contracting out of work and the prospects
for further enhancing the
productivity of the carriers' forces.
The carriers expressed the position in these discussions that the
existing rule in the May 17, 1968 National Agreement, properly applied,
adequately safeguarded work opportunities for their employees while
preserving the carriers' right to contract out work in situations where
warranted. The organization, however, `believed it necessary to restrict
such carriers' rights because of its concerns that work within the scope of
the applicable schedule agreement is contracted out unnecessarily.
Conversely, during our discussions of the carriers' proposals, you
indicated a willingness to continue to explore ways and means of achieving
a more efficient and economical utilization of the work force.
The parties believe that there are opportunities available to reduce
the problems now arising over contracting of work. As a first step, it is
agreed that a Labor-Management Committee will be established. The
Committee shall consist of six members to be appointed within thirty days
of the date of the December 11, 1981 National Agreement. Three members
shall be appointed by the Brotherhood of Maintenance of Way Employes
Form 1 Award No. 32225
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97-3-93-3-337
and three members by the National Carriers' Conference Committee. The
members of the Committee will be permitted to call upon other parties to
participate in meetings or otherwise assist at any time.
The initial meeting of the Committee shall occur within sixty days
of the date of the December 11, 1981 National Agreement. At that
meeting, the parties will establish a regular meeting schedule so as to
ensure that meetings will be held on a periodic basis.
The Committee shall retain authority to continue discussions on
these subjects for the purpose of developing mutually acceptable
recommendations that would permit greater work opportunities for
maintenance of way employees as well as improve the carriers'
productivity by providing more flexibility in the utilization of such
employees.
The carriers assure you that they will assert Lyood-faith efforts to
reduce the incidence of subcontracting and increase the use of their
maintenance of way forces to the extent oracticable. including the
procurement of rental equipment and oeeration thereof by carrier
employees.
The parties iointly reaffirm the intent of Article IV of the May 17,
1968 Agreement that advance notice requirements be strictly adhered to
and encourage the uarties locally to take advantage of the good faith
discussions provided for to reconcile any differences. In the interests of
imurovine communications between the parties on subcontracting, the
advance notices shall identify the work to be contracted and the reasons
therefor.
Notwithstanding any other provision of the December 11, 1981
National Agreement, the parties shall be free to serve notices concerning
the matters herein at any time after January 1, 1984. However, such
notices shall not become effective before July 1, 1984.
Form 1 Award No. 32225
Page 6 Docket No. MW-31312
97-3-93-3-337
Please indicate your concurrence by affixing your signature in the
space provided below.
Very truly yours,
/s/ Charles I. Hopkins, Jr.
Charles I. Hopkins, Jr.
I concur:
/s/ O.M. Berge" [Emphasis added.]
The instant claim was submitted by the General Chairman in a letter dated
November 28, 1990 to the Division Engineer. In his response dated January 23, 1991
the Division Engineer stated:
"In your claim you stated the Contractor removed soiled fill
material near the end of the Shops. You have not provided any evidence
that the described work has been historically performed and isolated to B
of WE employees.
From the information furnished in your claim, I find no evidence of
violation of the Agreement. Your claim is hereby respectfully declined in
its entirety."
By letter dated March 6, 1991 the General Chairman rejected the Division
Engineer's decision and appealed the matter. By letter dated May 2, 1991 the Director
Employee Relations responded in relevant part as follows:
"Investigation reveals that this work was done at the insistence of
the EPA due to the amount of soil contamination present in Uceta Yard.
The contractor removed the contaminated soil, transported it from
the site whereupon it was incinerated, and renewed the area with fresh fill.
Form 1 Award No.
32225
Page
7
Docket No.
MW-31312
97-3-93-3-337
Maintenance of Way Employees have not performed this type of
work in the past. Additionally, Carrier does not have the equipment nor
means to dispose of contaminated material of this type.
Further, Carrier is not obligated to confer with the Organization
under the terms of Rule
2,
in cases where the involved work does not
accrue to Maintenance of Way Employees through Agreement Rule or
exclusive past practice on the property.
Accordingly, there has been no violation of any Agreement Rule and
the claim is declined."
In his letter dated March 11,
1993
to the Director Employee Relations, the
General Chairman stated in relevant part:
"In response to your letter dated May 1,
1991,
declining our appeal
in the above referenced file, the Carrier is in serious error for the following
reasons. The Carrier asserts that an EPA directive resulted in the work
being contracting (sic). We request a copy of the purported directive to
substantiate the validity of such contention. Moreover, if EPA was
involved, the Carrier was aware and clearly had advance notice of the
necessity to perform the subject maintenance work along its right-of-way.
The point here being that the Carrier's contention supports rather than
defeats this instant claim. If the Carrier was aware of and was given
notice concerning the work in question, its failure to notify/confer with the
General Chairman in good faith is fatal to its position at the outset.
Although initially the Carrier declined the instant claim because we
allegedly provided no evidence that the work of operating a
2'/x
yard front
end loader and dump truck removing and replacing surface soil along the
Carrier's right-of-way was not historically performed by and isolated to
BMWE employees, you have now expanded your contentions to include:
1. Maintenance of Way employees have not performed work of
this type before.
2.
Carrier does not have the equipment to do this work.
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Page 8 Docket No. MW-31312
97-3-93-3-337
3. Carrier is not obligated to confer with the Organization
under the terms of Rule 2, where the work is not
Maintenance of Way work by Agreement rule or exclusive
past practice on the property.
First, the Carrier is wrong with respect to its argument that such
work is not Maintenance of Way work. Historically and customarily this
type of work has been assigned to and performed by its Maintenance of
Way, General Subdepartment, Group A, Machine Operators. In support
thereof, attached hereto you will find copy of 'Contracting Notice' dated
November 12,
1991,
Carrier File: 12
(S7) SCL 91-65
where in the Carrier
complies with its mandated requirement under the provision of Rule 2, and
clearly reveals that the work of the character as involved herein fell under
the purview of its Maintenance of Way Agreement. The fact is that the
front end loader (with 2'/a cu. yard shovel) is specifically listed and the
dump truck is similar equipment as contemplated by the Agreement.
Hence, the Agreement clearly and unambiguously reserves the work of
operating such equipment in connection with maintaining the Carrier's
right-of-way to Maintenance of Way forces. The Carrier has recognized
that fact and historically made such assignments to its Maintenance of
Way, General Subdepartment, Group A, Machine Operators in the past.
It is well established that some job titles are clear enough to reserve work
thereto. We, to the contrary, are disingenuous. Moreover, if the operation
of a 2'/z cu. yard shovel/loader and dump truck is reserved by clear rule,
there is no need to look to past practice. In any event, if such work is even
colorably scope covered, the Carrier was obligated by the clear and
unambiguous language of Rule 2 to provide good faith notice/conference
to the General Chairman. The purpose of such good faith
notice/conference was to arrive at an agreement setting forth the
conditions under which the work would be performed. Of course, the
Carrier's actions in this instance precluded any good faith discussions in
conference and the Carrier's violation of Rule 2 is inescapable.
Beyond good faith advance notice and good faith discussions in
conference, the Carrier blatantly assigned maintenance of its right-of-way
to other than those for whom the contract was made. Therefore, the
Carrier compounded its failure to notify/confer by assignment of
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97-3-93-3-337
Maintenance of Way work to outside forces, again the work involved was
the operation of a front end loader (2'/= cu. yard shovel) to scoop up and
load into a dump truck for removal from the Carrier's right-of-way and
the Carrier cannot validly contend that such work has not customarily,
traditionally and historically been assigned to and performed by its
Maintenance of Way employees. After removal of such soil along the
Carrier's right-of-way, the front end loader was then operated to replace
what had been removed with clean material and to smooth the surface.
Because such equipment is clearly specified within the Agreement, the
Agreement is clear and practice, exclusive or otherwise, is irrelevant, the
Carrier's assignment of outsiders to perform the subject work while
claimant remained furloughed awaiting recall, was an unconscionable
violation of the Agreement.
In addition, `exclusively' is an invalid defense because it has no valid
application in contracting out of work disputes; no valid application
whatsoever in contracting disputes involving notice (no notice/bad faith
notice); is not in harmony with Rule 2 or the December 11, 1981, Letter of
Agreement; precludes good faith discussions and destroys the integrity of
the collective bargaining Agreement.
With respect to the Carrier's contention regarding equipment, i.e.,
it does not have the equipment to do the work in question, such is simply
not true. Assuming, arguendo, if such were the case (which we deny) the
necessary equipment could have been obtained through rental lease and/or
purchase. With a modicum of managerial foresight, the Carrier could
have made an effort to procure the necessary equipment (it allegedly
lacked) as it had promised to do in the December 11, 1981 Letter of
Agreement. Moreover, we have repeatedly and consistently offered our
assistance to the Carrier in this regard.
But the Carrier even failed to put
forth the effort to pick up the phone and request such assistance in this
instance. We submit that such is not a good faith effort as contemplated
by the parties when the December 11, 1981 Letter of Agreement was made.
In any case, equipment sufficiently (sic) is one (1) on (sic) the two (2)
coexisting specific instances in which Rule 2 contemplated would be the
centerpiece of good faith discussions, in conference. (The other specifically
Form 1 Award No. 32225
Page 10 Docket No. MW-31312
97-3-93-3-337
stipulated pre-requisite condition being special skills not possessed by the
Carrier's forces). In addition to the fact that the Carrier failed to even
assert that a specific special skill was involved (none were) its failure to
notify-confer and discuss the prerequisite co-existing conditions in
accordance with Rule 2, stopped the Carrier from relying thereon in
defense of a claim, as here, after the fact. Suffice it to say, the Carrier's
equipment contention is meritless and procedurally defective.
This Carrier is a proven flagrant and repeated violator of the
contracting provisions of this Agreement and the integrity of the
Agreement is at stake.
For all the reasons set forth above and those set forth within our
previous correspondence concerning this claim, which by reference is
incorporated herein, the instant claim should be allowed as presented.
If the Carrier is in need of additional time in which to respond to
this entry to the record, please advise and we will handle accordingly."
In his response dated May 7, 1993, to the General Chairman, the Director
Employee Relations stated in relevant part:
"As evidence, to argue the point that M of W Employees have in the
past performed claimed work, you state examples of where similar
equipment was used to do M of W work. We concur that similar
equipment can be used to perform M of W work, but is used to perform
work that is not M of W as well. The nature of the work is the determinate
factor used to classify work. The fact that work equipment was used is of
little value to support your claim. Equipment such as dump trucks and
front end loaders are designed and used to perform a multitude of
functions of which M of W work is just one. You merely state without
foundation that the claim is valid and the work constitutes a violation of
the Agreement.
However, the claimed work was remedial action, that is the removal
of soil contaminated with diesel fuel and replaced with fresh soil, taken by
the Carrier that required specially trained personnel as required by
Form 1 Award No. 32225
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97-3-93-3-337
Federal Law Title 29 CFR, Section 1910.120 copy of which is attached.
Mr. Weltzbarker has no record of such training and thus would not legally
be qualified to do this work.
Secondly, throughout your correspondence you have failed to
demonstrate that remediation of contaminated soil is in fact exclusively M
of W work. Merely stating that the Agreement was violated because some
type of work was performed does not validate a claim. As a result, your
lack of support and validation concerning this argument augments our
position that this work was not M of W work and therefore Rule 2 is not
applicable.
Also, you use as support charges that: `The Carrier is a proven
flagrant and repeated violator of the contracting provisions of this
Agreement and the integrity of the Agreement is at stake.' Again, this
unsupported assertion does little to prove the validity of this claim.
Remediation of contaminated soil is not, and has not been M of W work.
There is no provision
in
the current Agreement to state that soil
remediation is M of W work. That is probably why you fail to state any
rule proving otherwise.
Therefore, in that the claimant was not qualified per federal law and
the work is not M of W work this claim has no merit and continues to be
declined."
In his letter dated May 12, 1993 to the Director Employee Relations, the General
Chairman stated:
"In your letter, you state in part, `The fact that work equipment was
used is of little value to support your claim. Equipment such as dump
trucks and front end loaders are designed and used to perform a multitude
of functions of which M of W work is just one.' Contrary to the above
quoted assertions, with regard to the value of our contention, specific
evidence was attached to and referenced within the parameters of our
letter to you dated March 11, 1993, and need not be readdressed herein,
Form 1 Award No. 32225
Page 12 Docket No. MW-31312
97-3-93-3-337
except to reiterate that this Carrier has already recognized that the work
made subject of this dispute is indeed covered under the purview of the
schedule Agreement, thus requiring notice. Based on the specific
presentation of claim, the specific evidence submitted in support of our
claim, as well as, your tacit admission (May 7, 1993) of the violation, there
can be no doubt that the clear and unambiguous provision of the
Agreement have (sic) been violated. Notwithstanding, you have clearly
failed to provide any information to support your apparent assertions with
respect to the Carrier's utilization of equipment in other than the
Maintenance of Way craft.
An interesting point necessitating mention, in this instant dispute,
is that throughout the handling of this case on the property, the Carrier
has failed to make any showing, whatsoever, that the work made
subject of this dispute, was, as purported, such that required specially
trained personnel. We sincerely appreciate your attachment of Title 29
of the Federation Register, however, as you attempt to state in your letter
of May 7, 1993, assertions without support don't cut it. During conference
of this claim on the property, the Organization requested that the Carrier
provide proper documentation to support its otherwise lacking assertion,
but here again as of this date nothing has been provided with respect to
hazardous materials. Work of the character involved herein is indigenous
to work performed by Maintenance of Way employees on a daily basis, i.e.,
handling creosoted materials, tie filler products, herbicides, replacement
of contaminated or soiled ballast, handling of fuel oils and lubricating
compounds, replacement of track components specifically in yards and
fueling facility locations, grading work on roadbeds and right-of-way at
derailment sites, as well as, excavation, removal, distribution and leveling
of fill and ballast materials in yards, various facilities and rights-of-way as
was done in this instant case."
The two issues before the Board are: (1) Did the Carrier violate Rule 2, Section
1, when it failed to confer with the General Chairman and reach an understanding prior
to contracting out the work in question; and (2) Did the Carrier violate the Agreement
when it assigned the work to outside forces'!
Form 1 Award No. 32225
Page 13 Docket No. MW-31312
97-3-93-3-337
With respect to the first issue, the record shows that the Carrier failed to meet the
specific requirements in Rule 2 that the Chief Engineer confer with the General
Chairman and reach an understanding setting forth the conditions under which the
work would be performed. This issue is addressed in Third Division Award 30970, in
which the Board stated:
"Whether the nature of the work performed brought it within the express
exception in Rule 2 is a matter which Carrier could have and should have
discussed with the General Chairman under the plain, unambiguous and
unqualified notification provisions of Rule 2. Carrier's manifest failure as
to notice and good faith discussion constitutes an independent violation of
Rule 2 which obviates our inquiry into the nature of the work and requires
a sustaining award."
Numerous other Awards, including those dealing with the identical parties in the
instant dispute, reach the same result.
With respect to the contracting out of the work, the Board concludes that the
Organization made a prima facie case that the work was within the terms of Rule 2: "All
maintenance work in the Maintenance of Way and Structures Department." The
Carrier raised the affirmative defense that it was required under an order from the EPA
to have the work performed, and that pursuant to EPA regulations, it could only be
performed by individuals who have had the training required by OSHA and are
qualified to handle hazardous materials. The Carrier contended that subtracting the
work to a qualified contractor was therefore necessitated by law because Maintenance
of Way forces did not possess the requisite skills and/or training to remove the
contaminated soil.
The Carrier has the burden of proof to support its affirmative defense. Despite
repeated requests by the Organization during the handling of this dispute on the
property, the Carrier failed to produce proof that the work was done pursuant to an
EPA order. Neither did the Carrier adduce such evidence during the submission of the
dispute to the Board. Production of a copy of the EPA regulations does not support the
Carrier's claim that it was subject to an EPA order. The Carrier's affirmative defense
therefore fails for lack of proof. A sustaining Award is warranted.
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Page 14 Docket No. MW-31312
97-3-93-3-337
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 17th day of September 1997.