Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32227
Docket No. MW-31323
97-3-93-3-254
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 Louisville and
( Nashville Railroad)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (David Steel's Roofing Company) to shingle the Depot at
Bridgeport, Alabama, on September 4, 5, 6, 9, 10, 11 and 12, 1991
[System File 9 (70) (91)/ 12 (91-1613) LNR[.
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with advance written notice
of
its
intention to contract out said work as required by Article IV
of
the
May 17, 1968 National Agreement.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Bridge and Building Subdepartment employes J. H. Roberts,
C. V. Arnold, L. L. Woodlee, K. W. Steel and T. Smith shall each
be allowed ten (10) hours' pay, at their respective rates of pay, for
September 4, 5, 6, 9, 11, and 12, 1991 and four hours' pay, at their
respective rates
of
pay, for September 10, 1991."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 32227
Page 2 Docket No. MW-31323
97-3-93-3-254
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.
The Organization asserts that on September 4, 5, 6, 9, 10, 11 and 12, 1991 the
Carrier assigned or otherwise allowed outside forces (David Steel's Roofing Company)
to shingle the roof of the Depot at Bridgeport, Alabama. Five employees of the outside
contractor, who hold no seniority in the Maintenance of Way and Structures
Department, each worked a total of 64 man-hours utilizing common ordinary carpenter
tools in the performance of the building (roofing) maintenance in question.
Claimants J. H. Roberts, C. V. Arnold,
L. L.
Woodlee, K. W. Steel and T. Smith
established and hold seniority in the B&B Subdepartment. At the time the incident
involved here occurred, they were regularly assigned to positions within the B&B
Subdepartment.
The Organization asserts that the performance of building maintenance/repair
work, such as the placement of shingles on the roof of the Depot at Bridgeport, Alabama,
is customarily and traditionally performed by the Carrier's Maintenance of Way B&B
forces and is contractually reserved to them by the Agreement. The Organization
further asserts that Claimants were qualified, willing and available to perform all work
involved in this dispute during regular workdays, during rest days or on daily overtime,
and would have expeditiously done so had the Carrier assigned them to do so.
The Carrier does not contest the Organization's allegations that the disputed
work was done by employees of an outside contractor. Rather, the Carrier urges this
Board to find that the work was removed from coverage of the Agreement because the
Carrier previously had ceded dominion and control of the work to the Bridgeport
Historical Society.
The Carrier thus raises an affirmative defense, asserting that the subject property
was leased, and subsequently sold to the Bridgeport Area Historic Association (BAHA)
Form 1 Award No. 32227
Page 3 Docket No. MW-31323
97-3-93-3-254
and that the lease and sale both occurred before the disputed work was done on the
subject property. The Carrier contends that: (1) this work was not at the behest of the
Carrier, (2) it was not paid for by the Carrier, (3) the Carrier is only aware of such
work in compliance with the provisions of the Lease Agreement, (4) the work was
contracted by the Lessee, BAHA, which is not signatory to the Agreement provisions
cited by the Organization, and (5) numerous Awards have supported the distinction
between Lessor/Lessee roles when a Carrier cedes dominion and control over disputed
work, which removes the work from the coverage
of
the Agreement. The Carrier urges
the Board to decline this claim in its entirety.
Relevant provisions
of
the controlling Agreement contain the following Rules:
"RULE I. SCOPE
Subject to the exceptions in Rule 2, the rules contained herein shall
govern the hours
of
service, working conditions, and rates
of
pay for all
employes in any and all subdepartments
of
the Maintenance
of
Way and
Structures Department, represented by the Brotherhood
of
Maintenance
of
Way Employes, and such employes shall perform all work in the
maintenance
of
way and structures department.
RULE 3. SUBDEPARTMENTS
The employes covered herein shall be grouped in subdepartments,
namely:
3(a) Track Subdepartment.
3(b) Bridge and Building Subdenartment
RULE 41. BRIDGE AND BUILDING WORK
41(a) All work which is done by Company forces in the
construction, maintenance, repair, or dismantling
of
bridges, buildings.
tunnels, wharves, docks, water tanks, turntables, platforms, walks, and
Form 1 Award No. 32227
Page 4 Docket No. MW-31323
97-3-93-3-254
other structures, built of brick, tile, concrete, wood, or steel, the painting
of bridges, buildings, docks, platforms, walks, turntables, tanks and other
structures, hand rails in buildings and on bridges, and the erection and
maintenance of signs attached to buildings or other structures, shall be
performed by employes of the bridge and building subdeoartment.
Rule 41(f) When bridge and building subdepartment employes
are used to do brickwork, plastering, slate or tile roofing, tinner's work,
or concrete finishing, they shall be paid on the basis of a differential of 22
cents per hour above carpenter pro rata rate for all time so eneaeed:'
[Emphasis added.]
There are numerous decisions of the Board which hold that the Maintenance of
Way Agreement extends only to property which is subject to the Carrier's domain and
control. See, e.g., Second Division Award 3630. However, the Carrier has the burden
of producing evidence in support of its affirmative defense, and such production of
evidence must be accomplished during the handling of the dispute on the property.
A review of the correspondence of record reveals that the Carrier raised the
affirmative defense early in the dispute, but failed to timely produce substantiating proof
during the handling of the dispute on the property. The General Chairman submitted
the claim to the Division Engineer on September 25, 1991. In his response dated
October 8, 1991 the Division Engineer stated:
"In researching this claim, we find that all of the claimants listed in
your claim were working and under pay during the dates of the claim and
we can decline this claim on that account, however, we also find that a
contract for the sale of the depot at Bridgeport, AI. was executed with the
Bridgeport Area Historical Association in December of 1990 in which the
land surrounding the depot and the depot itself was donated to the
B.A.H.A.
Since the building was the property of the B.A.H.A. in December of
1990, any work done on it after that time does not belong to the Railroad.
This claim is declined in its entirety."
Form I Award No. 32227
Page 5 Docket No. MW-31323
97-3-93-3-254
Under date of December 3, 1991 the General Chairman wrote to the Director of
Employee Relations disagreeing with the Division Engineer's declination of the claim.
The General Chairman's letter included the following statements:
"Mr. Dobbs states that the claimants were working and under pay
during the time period of this claim. This is true. However, this does not
give the Company a free hand to contract our Maintenance of Way work.
Nor does it give the Company the right to ignore the May 17, 1968
National Agreement or the December 11, 1981 National Agreement.
Mr. Dobbs further states that the Depot in question was sold to the
City of Bridgeport, AL. However, Mr. Dobbs elected not to provide the
Organization with a copy of such sale. Therefore, the Organization is
requesting a copy of the alleged sale of the Depot at Bridgeport, AL."
[Emphasis in original.]
Under date of August 5, 1992, the Director of Employee Relations advised the
General Chairman as follows:
"The Bridgeport Area Historic Association had leased from the
Carrier property at Bridgeport, Alabama and in January of 1991 the
depot at Bridgeport was sold to the Association. The depot ceased to be
part of Carrier's operating facility years ago and with the sale of same to
the BAHA, ceased to belong to the Carrier. Along with the purchase of the
depot so went the responsibility for its maintenance. The work was no
longer encompassed within the scope of the schedule Agreement and
ceased to accrue to MofW employees.
We are currently arranging for a copy of the bill of sale under
which the Carrier donated the depot at Bridgeport to the BAHA.
,.
* 99
Under date of April 13, 1993 the General Chairman made the following request
of the Director of Employee Relations:
Form 1 Award No. 32227
Page 6 Docket No. MW-31323
97-3-93-3-254
"You state in your letter dated August 5, 1982, that the Carrier
would send the Organization a copy of both the lease agreement and the
sale Agreement. To this date, the Organization has not received same.
However if you desire to send same and a time limit extension is
needed, please contact my office and I will agree to a time limit extension."
The Director of Employee Relations did not request a time limit extension, nor did
he provide the requested lease and/or sale agreements prior to the filing of notice of
intent to file with the Third Division on April 28, 1993. In its Submission to the Board,
the Carrier asserts that it sent a copy of the lease and bill of sale to the General
Chairman by fax on May 11, 1993.
It is a well established rule that the Board should not consider de novo any new
evidence not previously submitted by a party during the handling of the dispute on the
property. See Third Division Award 20895. The Carrier's affirmative defense based
upon the alleged lease and sales agreement was raised on October 8, 1991. Despite
repeated requests from the Organization for production of said documents, the Carrier
failed to produce the documents during the handling of the dispute on the property. The
handling on the property was closed on April 28, 1993 when the Organization filed its
Notice of Intent to submit the claim to the Third Division on April 28, 1993.
The Board was faced with very similar facts in Third Division Award 28430
wherein the Board held:
"Notwithstanding the Organization's request for production of the
lease and further notwithstanding the fact that in denying the Claim, the
Carrier relied solely upon the terms of the lease, a copy of the lease was
not produced on the property. However, a copy of the lease was attached
to the Carrier's submission in this matter.
r r
The fact that the Carrier attached the lease to its submission does
not change the result. Submitting the lease in such a fashion is a request
for this Board to consider new material not handled on the property. It is
well established that we are unable to now consider that material."
Form 1 Award No. 32227
page 7 Docket No. MW-31323
97-3-93-3-254
That claim was sustained. The same results have been reached in other cases
under similar circumstances. See, eg., Third Division Awards 19623, 20895 and 28229.
Because the submission of the lease and bill of sale by the Carrier was untimely, such
documents will not be considered by the Board.
Based upon evidence properly in the record, the Board finds that the
Organization met its burden of proof in establishing that the disputed work was covered
by the Scope Rule of the Agreement, and that the Carrier failed to give advance notice
as required by the Agreement. The Agreement therefore was violated.
With respect to the issue of the appropriate remedy, the Carrier contends that the
remedy for a proven Rule violation is measured by actual damages to the Claimants, and
that the Claimants suffered no monetary loss as a result of the disputed work because
they were fully employed at the time. A review of prior Awards of this Board reveal a
divergence of opinion on this issue, as described in Third Division Award 26593:
"... Many Awards support the proposition that even where there is
a contract violation, a Claimant will not succeed unless there is a showing
of actual loss of pay on the Claimants' parts. The opposing line of cases
finds that to limit damages, in effect, gives a carrier a license to ignore the
contract provisions. A third viewpoint which has also been expressed is
the conclusion that each case must be considered on its merits taking into
consideration such factors as intent or motive on the part of the carrier.
Under the circumstances of this case, although a technical violation of the
Agreement occurred due to lack of notice prior to the subcontracting, there is no
evidence of actual damage to the Claimants. The Board therefore declines to award the
damages claimed as there is no basis in the record to support such claim for damages.
AWARD
Claim sustained in accordance with the Findings.
Form 1 Award No. 32227
Page 8 Docket No. MW-31323
97-3-93-3-254
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.
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD 32227, DOCKET MW-31323
(Referee Vause)
Since the award was sustained in part, the small concurrence
required is only to the extent that the Carrier violated Article IV
of the May 17, 1968 National Agreement. That wasn't difficult to
surmise in light of the fact that the Carrier freely admitted that
it did not do so.
The DISSENT is directed towards the Majority's erroneous
finding that the violation was a "technical" one and therefore the
appropriate remedy for the Carrier's admitted violation was to deny
the awarding of a monetary remedy because the Claimants were
working on the dates of the violation. This line of reasoning does
violence to the Agreement by effectively endorsing the Carrier's
blatant violation thereof.
A review of the record will reveal that the Majority's
findings contains multiple errors. First, the record reveals that
the carrier committed a dual violation of the Agreement. The Board
held the Carrier violated the Scope Rule and Article IV of the May
17, 1968 National Agreement, by stating thusly:
"Based upon evidence properly in the record, the
Board finds that the Organization met its burden of proof
in establishing that the disputed work was covered by the
Labor Member's Concurrence and Dissent
Award 32227
Page Two
"Scope Rule of the Agreement, and that the Carrier failed
to give advance notice as required by the Agreement. The
Agreement therefore was violated.
Under the circumstances of this case, although a
technical violation of the Agreement occurred due to lack
of notice prior to the subcontracting, there is no
evidence of actual damage to the Claimants. The Board
therefore declines to award the damages claimed as there
is no basis in the record to support such claim for
damages." (Emphasis added)
Then when it was commenting on the remedy portion of the award
the Majority held that a "technical" violation of the Agreement
occurred and this excuse was the basis to deny a monetary remedy.
Such reasoning is contradictory.
The organization is aware of other awards that have held that
a violation of
referred to as
Organization doe those cases but
s
the notice provisions,
"technical" violation
not, however, endorse
does acknowledge the
problem here is that
t
standing alone, has been
of the Agreement. The
the Majority's findings in
existence of such faulty
reasoning. Thehe Majority clearly found
that not only a notice violation was present but also a violation
of the Scope Rule occurred because such work is reserved to the
Hence, the Majority's findings of a
just patently wrong.
Claimants.
violation is
stop there.
"technical"
The Majority's errors do not
Labor Member's Concurrence and Dissent
Award 32227
Page Three
The Majority was provided with ample on-arogertv precedent by
which it could have relied to award monetary relief in this case
but chose to ignore said precedent. Instead, the Majority relied
on Award 26593 as support for its decision to deny the monetary
portion of this case. That award dealt with a case between the
American Train Dispatchers and the St. Louis and Southwestern
Railway Company. The Majority in this case cited the following
language from Award 26593:
I,***
Many Awards support the proposition that even
where there is a contract violation, a Claimant will not
succeed unless there is a showing of actual loss of pay
on the Claimants' parts. The opposing line of cases
finds that to limit damages, in effect, gives a carrier
a license to ignore the contract provisions. A third
viewpoint which has also been expressed is the conclusion
that each case must be considered on its merits taking
into consideration such factors as intent or motive on
the part of the carrier."
The problem with the Majority citing the above-cited portion
of that award as authority is that it selectively quoted the dictum
and ignored the substance. The following paragraph was ignored by
the Majority in this case:
"*** we are of the view that a better purpose is
served in the long run which clearly provides a guideline
for the parties in the future. With that in mind, we
have concluded that there is no prohibition from awarding
damages where there is no actual loss of pay. That
finding is based on our belief that in order to provide
for the enforcement of this agreement, the only way it
Labor Member's Concurrence and Dissent
Award 32227
Page Four
"can be effectively enforced is if a Claimant or
Claimants be awarded damages even though there are no
actual losses. Numerous other Awards have reached the
same conclusion, holding that where, as here, Claimants
by Carrier's violation lost their rightful opportunity to
perform the work, they are entitled to a monetary claim.
See Third Division Awards 21678, 19899, 19924, 20042,
20338, 20412, 20754, 20892. Accordingly, we will rule to
sustain the Claim in its entirety."
The Majority clearly held in Award 26593 that it is proper to
award damages and that there clearly is no prohibition from doing
so. In fact, the Majority held in that case that awarding of
monetary relief to otherwise fully employed claimants serves as
means to enforce the Agreement. The Majority's decision to cite
Award 26593 as authority for denying monetary relief in this case
is simply incredible, bordering on the absurd. This award is
palpably erroneous, worthless as precedent and, therefore, I
dissent.
ectfui-1y submitted,
Roy . Robinson
Labo Member