The Organization objected to the notice by letter dated December 5, 1997, contending that such "blanket" notices were not contemplated under the parties' Agreement.
On January 15,1998, Tomascello Construction plowed and removed snow from roads and parking facilities in and around the engine house area at Frontier Yard in Buffalo, New York. The Organization thereafter filed the instant claim, alleging a violation of the Scope Ruie of the parties' Agreement. T he Claimants were furloughed on January 15,1998, and thus they were available, and, according to the Organization, fully qualified to perform the work.
The Carrier denied the claim, arguing that the work of snow removal did not accrue to the Claimants exclusively by virtue of the Scope Rule. As the claim progressed through the appeal process, the Carrier further argued that the Form 1 Award No. 36271
~.aiata.i u0oa.a ia,aa LAI" I ittG \..latt11Al1W t~VCIVCU 1JIULCULIVC UC11C1M, IUl .jQ11UAtf 10, 1770, and therefore even if payment were due, it would be offset by that amount.
In its Submission and argument before the Board, the Carrier advanced several new arguments. It asserted that there were emergency snow conditions on January 15, 1998 which are exempt from the provisions of the Scope Rule. In addition, the Carrier argued that snow removal from parking lots is not work reserved to the Organization. The Carrier also took the position that there wac incnffirirnt time to roll neat fnrlnnahrd employees. While those arguments would have been duly considered had they been raised on the property, it is quite well established that the Board cannot consider argument or evidence de novo. Accordingly, we have confined our review of this case to .,
me arguments and evidence presented during the handling of the matter on the property.
So stating, we note at the outset that a majority of the Board Awards on this property have held that snow removal is work that comes under the Scope Rule of the Agreement and therefore notice is required before the work is contracted out. See Third Division Awards 31752, 32344 and 35835. The case cited by the Carrier, Third Divieinn Award 'Atlt171) fnnnd nn nvnroec rnevrvatinn of avnrlr in thn ~nnnn D_ln h,.* relied for its finding upon the fact that there was no clear showing as to exactly what work had been performed by the outside forces. In that case, the Board concluded that there was "insufficient evidence to make an informed decision" and thus the claim was denied. We find the factual circumstances of this case readily distinguishable, and conclude that application of existing precedent calls for the conclusion that the work at issue was scope covered.
Once that finding is made, the Carrier's exclusivity argument becomes unpersuasive. Work that is encompassed within the Scope Rule is contractually reserved to Maintenance of Way forces. This is not a class and craft dispute where
it informed the General Chairman by letter dated November 26, 1997 of its intent to contract out snow removal work. In response, the Organization argues that the letter was a "blanket" notice which has been found insufficient in similar contexts. Third Division Awards 24242 and 25677 are cited in support thereof. In those cases, the Carrier contracted out certain excavation work and the Board concluded that the notices issued to the Organization were too vague and nonspecific to comply with the intent of the notice requirement.
There is an important distinction to be drawn between those cases and this one. The timing of excavation work can be anticipated. However, both the timing and extent of snow removal work cannot be anticipated with any specificity as the work is entirely dependent upon the weather. The Carrier is required to give 15 days advance notice of its intent to contract work within the Scope of the Agreement. In light of the unpredictable and varying weather conditions which can trigger the need for snow removal, we find that the Carrier's letter in advance of the winter snow season constituted proper notice. The Organization was fully apprised of the prospective work and the operational reasons for contracting out the work. It had the opportunity to Form 1 Award No. 36271
request a meeting to discuss the matter, but there is no indication on the record that it did so. Absent any further contractual limitation on the Carrier's right to contract out the disputed work, we must rule to deny the claim.
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 36271. DOCKET MW-35904
(Referee Kenis)
Through no fault of the Referee, Award 36271 is an anomaly that should carry no precedential value. The reason for this anomaly is that the parties became so caught up in their argument over the propriety of the "blanket notice", that they neglected to properly emphasize well-established principles and what should have been the key point in this dispute. Contrary to the parties' arguments, the key point was not whether the blanket notice constituted proper advance notice under the Scope Rule, but whether the snow fall in question was so "heavy" that the Carrier's MofW forces could not handle it and an "emergency" was thereby created. If the snow was sufficiently heavy to create an emergency, the Carrier was free to contract out the snow removal work without providing advance notice thereby rendering the notice issue moot. On the other hand, if the snow fall did not create an emergency, then the Carrier violated the first paragraph of the Scope Rule by contracting out the snow removal work, irrespective of whether it did or did not provide proper advance notice under the second paragraph.
Of course, as in any contracting out dispute, the threshold burden is on the Organization to show that the work in question is Scope covered. If the work is shown to be within the Scope by virtue of specific reference or past practice, then it is a violation of the Agreement to contract out the work unless the Carrier can point to an exception stipulated in the Agreement. This interpretive paradigm has been consistently applied by the NRAB and was most succinctly and recently articulated in Third Division Award 35337 involving BMWE and the former T,4 non Railroad, which held:
snow removal work was Scope covered because: (1) they provided in Rule .l that MOIW forces would operate a wide variety of snow removal equipment ("Snow Flanger", "Snow Plow", "Front End Loader", "Jet Snow Blower", "FEL W/Snow Blower" and "Beihack Snow Blower"); and (2) they established an exception in the second paragraph of the Scope Rule under which snow removal work could be contracted out (i.e., when the snow was so "heavy" it could not be handled by the Carrier's MofW forces and thereby created an "emergency").
The Majority correctly concluded that snow removal work was Scope covered, but it then became tangled to a confusing web of the parties' own making as it sought to resolve the "blanket notice" issue. In addressing this matter, the Majority made a puzzling factual finding that was simply in error. That is, the Majority concluded that the Organization, "*** had the opportunity to request a meeting to discuss the matter, but there is no indication on the record that it did so. ***" (Award at PP. 4-5). Contrary thereto, the Organization responded to the Carrier's contracting notice in a letter dated December 5, 1997 and plainly stated, "Please arrange to list the above for discussion in compliance with the third paragraph of our Scope rule prior to making arrangements with any vendors." (Carrier's Exhibit "B" and Attachment No. 1 to Employes' Exhibit "C-5"). Hence, it is clear that the General Chairman did request a meeting to discuss the advance notice. Although there is no evidence in the record of the on-property handling that the Carrier scheduled a conference as required, there can be no question that the Carrier received the General Chairman's December 5`s conference request because, at Page 2 of its submission, it acknowledged receipt and asserts that a conference was scheduled and held.
However, all of the analysis of the nature of the notice and whether a meeting to discuss the notice was scheduled and held begs the central question in the case because complying with the notice and discussion provisions does not establish a right to contract out work covered by the first paragraph of the Scope Rule. In this connection, see Third Division Awards 31798, 32190, 32508, 36022 and Award 150 of Special Board of Adjustment No. 1016 which all involved cases where Conrail complied with the notice and discussion nrnvi.sinnq of the second a_nd third paragraphs of the Scope Rule and BMWE contracting out claims for violation of the first paragraph of the Scope Rule were nevertheless sustained. In light of the principles set forth in these well-reasoned awards, the real question in this dispute was whether the snow fall in question was qn "heavv" thnt the Cnrrier'c fnrrec rn,tlrl not hanrnr it therehir rrPOt;nr* o
contemplated by the second paragraph of the Scope Rule. If there truly was an emergency, then the Carrier was free to contract out the work, irrespective of whether it provided notice or not. However, while the Carrier alleged emergency in its advance notice letter and its submission to
In summary, the Statement of Claim charged the Carrier with a dual violation of the Scope Rule; it was charged with violating the first paragraph by contracting out the snow work and with compounding that violation by providing a blanket notice that BMWE believed to be deficient under the second paragraph. Even if the blanket notice was proper as the Majority held, the primary violation of the first paragraph should have been sustained under the principles set forth in the on-property awards referenced above. Therefore, while I recognize that the record was less than a model of clarity, I must respectfully dissent.
Carrier Members' Response
to Labor Member's Dissent to
Award 36271 (MW-35904)
Referee Kepis
Were it not for the manner in which this Dissent was filed/received, we would have ignored its posturing as the usual "sour grapes": There is no factual error pointed out nor is there any specific effort to demonstrate what error was made. The Dissenter derisively notes only that the referee was confused.
However, Award 36271 was adopted on October 28, 2002, and, as noted above, the Dissent points to no defect in the facts, logic or interpretation of the material in the record. The Dissent could have and should have been filed shortly after the Award's adoption to indicate the Dissenter's ffeel_ings. But instead the Dissent was filed several months later just when a very similar claim, involving the same issue at the same location, was about to be argued. To have any purpose, a Dissent should timely indicate what was lacking in the decision. The Dissent to Award 36271 does neither.
As the addendum to Award 9 of SBA 1016 noted the Organization "...has the burden to show that the work was `customarily and traditionally' nPrffnr_m__er_i by MW..." The claim that was made on the property was snow removal "from roads and parking facilities in and around the engine house area at Frontier Yard." As Dissenter notes the Scope Rule concerns the maintenance of tracks and roadbed. :iu%h "vf Lice equipment listed by Dissenter is on-track equipment. While there may be reservation in this regard such does not extend to roads and parking facilities. To include that extension as work reserved to the craft, there has to be evidence of past performance. In this record, there is no evidence: just repetitive ascertions_
Insofar as Notice is concerned, a Notice was issued and the parties had discussions. No issue was raised in the seven months of on-property handling that t hls arse day contracting of snow removal was not properly handled. It was a nonissue! Were there some improper handling, one can be certain that the Organization would have raised it. The Organization did not. It argued that the Notice was improper here, even though the same procedure had been used fnr several years. This decision should put an end to that kind of argument.
Finally, despite the Majority's proper finding that the "emergency" argument was not raised