This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
In support of its claim, the Organization contends that portions of the following Rules and Agreement are relevant:
The first question to be resolved is whether the work at issue is that which is exclusively performed by bargaining unit personnel. The Organization sets forth in its letter of May 24, 1995, the claim that the work has historically been performed by the employees covered under the provisions of the Agreements. This contention is coupled with the Agreement reached between the parties on June 13,1974. It is found that the work in question has been historically performed by the bargaining unit members.
The next issue relates to whether work being performed on behalf of a lessee of the Carrier is covered by the contract. The record indicates that bargaining unit members performed at least a portion of the work on the project in question and that the work was done under the control of the Carrier. In addition the Carrier was in control of the premises during the time the work was being performed. The close connection which the Carrier had with the work dictates a finding that such work is covered by the Agreement.
The Carrier contends that it was under a tight schedule; that it did not have the necessary equipment; and that the employees seeking relief were continuously Form 1 Award No. 35169
employed during the period in question. From the information presented it is clear the Carrier knew well in advance of the job requirements. The Carrier did have at its disposal a majority of the equipment required and has not refuted the Organization's contention that it could have leased whatever else was needed. The fact that the employees were regularly employed during the period in question does not relieve the Carrier from its responsibility to comply with the terms of the collective bargaining Agreement. It is determined that the Carrier is in violation of the Agreement.
The last matter to be resolved relates to the number of Claimants. The initial claim set forth in the Organization letter of May 24,1995 asserts that Charles Green and the ten oldest employees in seniority eligible for the work are to be paid for the time the contractor worked from March 22, 1995 to April 29, 1995. Thereafter, on June 20, 1995 the Carrier responded by referring to the claim filed on behalf of Mr. Green. Subsequent letters refer to Green only. On November 18,1996, Green directed a letter to the Organization, referring solely to himself in the context of the claim. On January 10, 1997, the Organization in response to the conference of this matter in a letter to the Carrier referring to the claim filed on behalf of Green and others and referring to the attached seniority roster. There is no indication that the Carrier was not aware that the claim included not only Green, but an additional ten employees.
The claim is granted on behalf of Green and the ten most senior employees. The Organization claimed 320 hours for each employee, but has not introduced any evidence to substantiate such claim. This matter is returned to the parties for the purpose of determining the ten most senior employees in addition to Green and also to determine the actual hours worked. When this has been done, the Claimants shall be compensated at their then regular hourly rate of pay for a proportionate share of the hours in question.
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.
Carrier Members' Dissent
to Award 35169 (Docket MW-33713)
Referee Donald Cohen
This Award is one that cries for dissent. Ignoring the most basic of grievance handling principles, the Majority has destabilized the relationship between these parties on an extremely important and often litigated issue. The first fundamental principle ignored by the Majority was that the Organization never cited a rule(s) allegedly violated until its Submission to the Board. Argument or rule citation not raised during the on-property handling and presented by the Organization for the first time in its Submission to the Board should have been ignored as required by Circular No. 1. See on-property Third Division Awards 20121, 34041, and 34042.
And even if the work were to be considered Scope-covered, that alone cannot circumvent the Carrier's right to contract out work. The record contained admissions by both the Organization in conference, and in the sole employee statement in the record, that such work had been contracted out in the past. In fact, the employee statement discussed work performed by contractor's forces at Memphis, another Hub center on the SLSF territory. The fact that past Awards recognize the Organization must conclusively demonstrate exclusivity of past performance to prevail in a case such
as this should have led the Majority to deny the claim for lack of proof. See onproperty Third Divis
Further, the number of Claimants was not something that needed to be determined by this Board. The record shows the Organization handled this dispute with the Carrier for 17 months and appealed the dispute on behalf of Mr. Green alone. With the appeal, no other Claimants were identified in any of the on-property correspondence. Then, at the last minute, the Organization changed the identity and number of Claimants. For the Majority to conclude that the Carrier was not deceived because of this deficiency has nothing to do with the fact that the Organization did not appeal the claim for anyone other than Mr. Green. Right or wrong, they did what they did. To reach this conclusion again required the Majority to ignore the record that was before the Board.
The Majority's decision in this matter is not supported by the record developed in this dispute but is predicated solely on the assertions of the Organization. The Organization did not prove its case. And since this Award is in direct conllict with such other Awards applicable to this property such as Third Division Award 20121 and Award 12 of PLB No. 4768, this Award cannot be considered precedent on this property. The Award does however prove that re-litigation of the same issues over and over again will sooner or later produce an undeserved windfall to the claimants, as it did here.
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENT
TO
AWARD 35169 (MW-337131
Referee Donald Cohen
One school of thought among railroad industry arbitration practitioners is that dissents are, for the most part, not worth the paper they are printed on because they rarely consist of more than a sour grapes repeat of arguments that were considered and did not prevail in the case. While the Labor Member does not necessarily adhere to this school of thought, it is foursquare on point with respect to the dissent in this case. In a transparent attempt to assail the unassailable reasoning o Majority, the CarrierMember's dissent misstates the facts, mis-characterizes the effect of the award and then cites anomalous awards as if they represent the dominant precedent on damages, which they do not.
The first problem with the dissent centers on the Minority's assertion that the Board erred by considering rules allegedly not cited by the Organization during the on-property handling. The problem here is that the initial letter of claim clearly cited a violation of the provisions of the 1, 1951 and the August 1, 1975 Agreements. The Carrier took no exception to citation of those Agreements as to the violation at issue here during the on-property handling and was estopped from objecting to the Board alleging that no rule was cited. The Minority's assertions were not expressed when it had the opportunity to do so and such a complaint comes too late after the notice of intent is filed at the Board.
The second problem with the dissent is that it relies upon the false premise that the Carrier had a long-standing practice of contracting out the work in question. This is a misstatement of the facts. As the record shows, BMWE-represented employes secured with this Carrier a Special Equipment Operator Agreement that reserved work operating the very equipment the Carrier chose to contract out in this case. Since the negotiation of that Agreement the BMWE-represented employes operated under that Agreement for decades performing the very same work at issue here. Hence, the Majorities findings that such work is reserved to BMWE-represented employes was not a difficult finding. When, as here, the Board is faced with a general Scope rule the standard for establishing Scope coverage is whether the work has been customarily, traditionally and historically performed by the employes. Not exclusively performed as the Minority urges. Evidence of this standard is found within Awards 20 and 21 of Public Law Board No. 4402, 1 and 25 of Public Law Board No. 4768 involving these parties. Typical thereof is Award 20 of Public Law Board No. 4402, wherein the Board held:
Hence, the question as to the applicability of the exclusivity test has been answered on this property and the Minority's complaining over this issue must be silenced.
The Minority assails the remedy by stating that it was improper to allow compensation for employes that were not specifically named by the Organization. The initial claim named one Claimant (Green) and ten (10) senior employes. Thereafter, the Carrier never disputed the Claimant, named or unnamed during the handling of this dispute on the property. Again, the Minority's late lamenting as to the outcome of this claim can only be described as sour grapes. Since the very inception of the NRAB and Public Law Boards, arbitrators in this industry have been awarding monetary damages in contracting out cases and similar cases, not only to make claimants whole for wage loss suffered, but, more importantly, to enforce the integrity of the Agreements, whether named or unnamed.
Finally, the Minority attacks the validity of the June 13, 1974 Agreement establishing the Special Equipment Operator group. As is typical with most Carriers and this Carrier in particular as soon as the ink is dry on an Agreement, the Carrier sets out for a way around it rather than complying with the terms and conditions of the Agreement. In other words making an Agreement with the Maintenance of Way employes is an exercise in futility for the Organization insofar as good faith on the Carrier's part is concerned.
Award 35169 is a well-reasoned award that drew its essence from the plain language of the Agreements and set forth a remedy consistent with literally thousands of awards and dominant legal precedent. For all of these reasons, the Carrier Members' dissent falls short just as its initial ca fell short and should be given the same amount of credence, which is to say none.