Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32505
Docket No. MW-31126
98-3-93-3-111
The Third Division consisted
of
the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned an outside
concern (Poole Paving) to perform grade crossing paving work on
the Boltin Street Road Crossing at Mile Post 14.1, 5th Street Road
Crossing at Mile Post 14.2, June Street Road Crossing at Mile Post
14.3 and 4th and Terry Street Road Crossings at Mile Post 14.5 on
the Xenia Secondary on July 22, 23, 24, 25, 26, 29, 30, 31, August
1 and 2, 1991 (System Docket MW-2351).
(2) The Agreement was further violated when the Carrier failed and
refused to furnish the General Chairman with proper advance
written notice
of
its intention to contract out said work and discuss
the matter in good faith as required by the Scope Rule.
(3) As a consequence
of
the violations referred to in Parts (1) and/or (2)
above, the senior furloughed Columbus Division vehicle operator,
track foreman, Class 2 Machine Operator and trackman shall each
be allowed eighty (80) hours' pay at their respective rates of pay."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 32505
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98-3-93-3-111
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.
Claimants in this dispute are the senior furloughed Track Foreman, the senior
furloughed Class 2 Machine Operator, the senior furloughed Vehicle Operator and the
senior furloughed Trackman, each of whom held seniority on the Columbus Division
Seniority Rosters in their respective classes at the time of this dispute.
On May 16, 1991, Carrier apprized the General Chairman as follows:
"As information, we intend to contract for the repaving of various road
crossings on the Columbus Seniority District of the Indianapolis Division
during the 1991 production season as indicated on Attachment `A' hereto.
The project will require approximately 145 tons of asphalt.
As you know, it is our position that the repaving work of this type is not
work covered by the Scope of our Agreement and that such repaving was
not done by our MW forces in the territory or system wide either as of the
date of our Agreement or thereafter.
Furthermore, even if we had available employees and such work could be
construed as coming within the Scope, despite the clear practice
thereunder to the contrary, Conrail does not possess the necessary
equipment nor the skills to perform this work. Even assuming that we
could obtain the equipment and train our employees, the cost of
performing this work would significantly exceed the cost involved in
utilizing a full-time professional paving contractor."
The Organization requested that Carrier furnish "specific" information regarding
the points asserted in the foregoing notice. However Carrier demurred, maintaining
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98-3-93-3-111
that the work in dispute was not scope covered and that the notice was nothing more
than a formality.
Commencing July 22, 1991, Poole Paving (hereinafter referred to as "Poole")
performed grade crossing paving work on the Boltin Street Road Crossing At M.P. 14.1,
5th Street Road Crossing at M.P. 14.2, June Street Road Crossing at M.P. 14.3 and 4th
and Terry Street Road Crossings at M.P. 14.5 on the Xenia Secondary. Poole utilized
one Vehicle Operator, one Foreman, one Machine Operator and one Laborer to perform
the work, which included tearing out crossings, paving over the same crossings and
hauling the resulting debris to another location on Carrier property. The work was
performed with one dump truck and one backhoe. The Poole employees worked eight
hours on each
of
the dates at issue.
On September 16, 1991 the Organization submitted the instant claim reading in
pertinent part as follows:
"The Claimants are claiming the work
of
the Vehicle Operator, 1
Foreman, 1 Class Two Machine Operator, and 1 Trackman listed above.
The Claimants were ready, willing and qualified to perform the work
performed by the contractor but were not permitted to perform the work
because Conrail employed the Contractor to do the work.
Therefore we are asking that each Claimant be paid 80 hours
of
pay at
each
of
their respective rates
of
pay. That would be 8 hours pay for each
of
the claim dates.
The equipment the Contractor used to perform this work could have been
easily acquired but the Carrier did not even try.
We are asking the claim be allowed as presented."
Carrier denied the claim premised upon the following:
"The paving, tearing out
of
crossings and hauling
of
debris is not
specifically identified by the Scope Rule as being reserved for BMWE
covered employees. In addition, it has been the practice on the Columbus
seniority district to contract the paving
of
highway crossings for as long as
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98-3-93-3-111
anyone can remember. Your claim this work has or should accrue to the
BMWE is without precedent.
Furthermore, G. Bent, in a letter dated May 16, 1991 to J. Cassese, Sr.,
put the Organization on notice that Conrail was intending to contract this
work out, and justified the decision by stating that Conrail does not possess
the necessary equipment, nor the skills to perform this work.
To successfully argue violation of the Scope Rule, you must have the
specific language of the Rule or past practice on your side; you have
neither.
Notwithstanding the reasons for denial given above, your claim is defective
in that you have failed to specifically identify the Claimants; identifying
employees who have supposedly been harmed financially by the
Company's actions as simply senior furloughed vehicle operator, foreman,
trackman and machine operator is insufficient."
The issues presented in this case have been contested between these Parties for
more than a decade. Neither the Parties nor this Board are sailing in uncharted waters.
On April 5, 1991, Special Board of Adjustment No. 1016 (Referee Blackwell) issued the
seminal precedent decisions in Awards 9 and 10, dealing with claims essentially identical
to the instant matter. When confronted in the cases decided in Awards 9 and 10 with
virtually the same facts and issues presented in the instant matter, the SBA No. 1016
majority held:
Award No. 9
"The parties' submissions present comprehensive historical analysis of
Board treatment of problems arising under the Maintenance of Way Scope
Rule, along with a large body of prior authorities which have ruled on
these problems with mixed results. Notwithstanding these mixed results,
the awards submitted of record indicate the existence of a growing
consensus favoring the proposition that the Carrier will usually be held
accountable if the Carrier has violated the notice requirements in the
Scope Rule of the MofWE Agreement, in circumstances where the disputed
work has been performed, albeit not exclusively, by Maintenance of Way
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98-3-93-3-111
Employees. One of the apparent justifications for this proposition is that
the Agreement text, first paragraph of the Scope Rule, brings under the
scope Rule `. . . work which, as of the effective date of this Agreement, was
being performed by these Employees . . . .' This provision of the Scope
Rule effectively negates the Carrier's contention that the exclusivity test,
on a system-wide basis, must be met to bring work under the confronting
Scope Rule."
Award No. 10
".
. . the Board concludes and finds that the record as a whole persuades
that the disputed work of paving (blacktop) and related clean-up at grade
crossings at the Cincinnati-Dayton Road and at Kemper Road on the
Columbus-to Cincinnati Mainline, falls within the purview of the Scope
Rule of the confronting Maintenance of Way Agreement; and further, that
there is no question that the Carrier failed to give the MofWE General
Chairman notice
of
the contracting out as required by the second and third
paragraphs
of
the Scope Rule. In these circumstances the Board finds that
the manner in which the Carrier effected the disputed contracting out
of
the paving and clean-up work at the two grade crossings in question, was
violative
of
the confronting Agreement and that the claims should
therefore be sustained."
Additionally, in Awards 11, 12, 82, 84, 85, 86, 87 and 88, SBA
No.
1016 followed the
reasoning enunciated in the above-quoted Awards and sustained all
of
those claims.
Despite repeated reargument by Carrier on the property
of
issues ostensibly
determined with finality by SBA
No.
1016 in Awards 9 and 10 and their progeny, the
majority
of
that Board consistently reaffirmed its adherence to that line
of
precedent.
See, eg., SBA
No.
1016, Award 84 in which the majority of SBA
No.
1016 exhaustively
revisits all
of
the issues and arguments decided in its earlier holdings and reiterates in
no uncertain terms:
". . . in
line with this Board's precedent Award
No. 10,
the Board finds
that the paving and repair
of
crossings in dispute in this case is covered by
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98-3-93-3-111
the BMWE Scope Rule and that the Carrier provides no justifiable reason
for contracting out said work. Therefore, the Board finds that the
Carrier's actions in this matter violated the work jurisdiction provisions
and the advance notice provisions of the Scope Rule in the Conrail BMWE
Agreement. A sustaining award is thus in order ....
The Carrier's contention that the disputed work is not work that accrues
to the BMWE is rejected on the basis of this Board's precedent
Award No.
10, which expressly found that
`.
. . the disputed work of paving (blacktop) and related cleanup at grade crossings at the Cincinnati-Dayton Road and at
Kemper Road on the Columbus to
Cincinnati Mainline,
falls
within the purview of the Scope Rule of the confronting
Maintenance of Way Agreement.'
The Board ISBA 10161 notes in addition that the herein disputed work is
covered by the Scope Rule's specific terms and by the Scope Rule's
provision that the Scope Rule covers work which was being performed by
BMWE on the date of the Conrail-BMWE Agreement, i.e. February I,
1982. "
The points at issue appeared to have been resolved conclusively by SBA No. 1016.
However, at that time the same issues had been submitted to the National Railroad
Adjustment Board, Third Division. In denying a related claim which arose in 1990, the
NRAB, with Referee Marx, found reason to distinguish that particular case on its facts
from those decided previously by SBA No. 1016. See Third Division Award 30540 (H.
Marx). Specifically, the Board in Award 30540 made determinative factual findings that
Carrier had given the Organization the requisite notice and opportunity to confer before
contracting out the claimed work and that the "additional responsibilities" of the BergeHopkins Letter of December 11, 1981 were not applicable on this Carrier's property
(citing as authority SBA No. 1016, Award 66-A). Although expressly citing and
ostensibly leaving undisturbed the line of precedent flowing from SBA No. 1016, :wards
9 and 10 on that basis, the majority in Award 30540 also offers some observations
concerning the nature of the claimed paving work in that particular case, as follows:
Form 1 Award No.
32505
Page 7 Docket No.
MW-31126
98-3-93-3-111
"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."
Upon careful consideration of the entire record in this matter, and ever mindful
of the evidentiary parameters established for this Board by Circular No. 1, we find SBA
Awards
9
and 10 dispositive of the instant claim. The distinguishing features which
compelled a different conclusion in Third Division Award
30540
(Marx) are not
demonstrated persuasively on the present record. Award
30540
is readily
distinguishable because,
inter alia,
in our case Carrier did not give the Organization
proper and timely Scope Rule notice.
In that connection, we note that the above-quoted seminal decisions of SBA No.
1016 in Awards
9
and 10 were dated April
5,
1991. More than five weeks later, by
letter dated May 16, 1991, Carrier purported to notify the Organization of its "intent
to contract" asphalt repaving work at various crossings on the Columbus Seniority
District of the Indianapolis Subdivision, including the crossings on the Xenia Secondary
referenced in this claim. However, persuasive record evidence shows that the specific
work claimed had already been contracted out by Carrier before or simultaneously with
the issuance of that May
16,
1991 letter to the BMWE General Chairman.
"Blind" copies of this same letter were received by the Carrier's Division General
Manager on May 20, 1991 and by the Division Engineer; together with the "approved
PA-9 No. 913154" (Requisition for outside services) and instructions to "maintain
accurate records of the dates and number of contractor's employees used at each
crossing." All this occurred less than a week after the May
16,
1991 letter was sent to
the Organization and long before the conference to discuss the subcontracting. This was
hardly good faith compliance by Carrier with the 15-day notice and opportunity to
confer requirements of the Scope Rule.
Even if,
arguendo,
the "greater responsibilities of the Berge- Hopkins" are
inapplicable, the facts of this record clearly demonstrate that when Carrier wrote the
Organization to "advise" them that it "intended" to contract with Poole, that
subcontract was already a
fait
accompli.
Other issues joined on the property and argued
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98-3-93-3-111
before this Board were persuasively determined by the decisions on SBA No. 1016,
Awards 9, 10 et al, which we cannot find to be palpably erroneous or significantly
distinguishable from the present case. Particularly since the decisions of SBA No. 1016
in Awards 9, 10 et al had been finalized in April 1991, Carrier's failure to comply in
good faith with the Scope Rule in May-June 1991 requires a sustaining decision in the
case.
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 25th day of March 1998.