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.
On August 5, 1999, the Carrier issued to the Organization a notice (Service Order 14889) regarding the Carrier's intent to enter into a contract for "labor and on-track mounted equipment necessary to pickup, remove and dispose of scrap ties which have been released by the system tie gangs (on an As Is, Where Is basis)." The Organization requested a conference. In conference documentation dated August 19, 1999, the Carrier described the subject of the proposed contract as "system-wide pick-up and disposal of ties. It is this offices understanding that the . ties have been stockpiled by Carrier forces and this work can therefore be contracted out by past practice."
On May 1, 2000, the Carrier entered into a contract with National Salvage and Service Corporation (National). Entitled "Contract for Work or Service," the Agreement with National identifies the work to be performed as providing "labor and equipment necessary to pick up and dispose of scrap ties from various locations Form 1 Award No. 37854
in the states of Nebraska and Idaho." The Agreement further describes the work as "the removal and disposal of all cross ties, switch ties and crossing timbers . . . replaced and released by the Railroad's System Tie Gangs . . . ." The Carrier agreed to pay rates established in a "Schedule of Billable Service Items" based on complete pickup and disposal of material including pieces of ties and timbers not able to be handled by Contractor's equipment." Under Section 1(D) of the attachment to the contract, disposal of ties is subject to certain requirements, including record keeping regarding the addresses where ties are either disposed or shipped for re-use. The Carrier is entitled to withhold payment if tie material is improperly disposed of by National. The Carrier also agreed to pay disposal fees for ties disposed of in an approved landfill. Section 1(C)(2) "Ownership of Ties, " states:
On September 2, 2000, the Organization filed a claim alleging that on August 10, 2000, two National employees began work at MP 323, "picking cross ties and cleaning the right of way working east." The Organization asserted that a boom with grapple hooks was used to load ties into a hi-rail semi tractor trailer. The ties were then dumped or stockpiled. According to the Organization, the National employees stopped the work on August 19, but were scheduled to return to remove stacked ties from the right-of-way.
The Carrier responded on October 27, 2000, informing the Organization that National employees had picked up and cleaned up ties behind a System Tie Gang at Shoshone, Idaho, and that the System Tie Gang had been responsible for setting up National to pickup and remove ties behind the gang. Having failed to reach a satisfactory resolution of the issues on the property, the parties submitted the dispute to the Board for fnal and binding resolution.
The Carrier contends that its contract with National was for an "as is - where is" sale of scrap ties. According to the Carrier, when title to the ties passed to National, the parties' Collective Bargaining Agreement became inapplicable to the ties and National was entitled to take its property wherever it was found, including from the Carrier's right-of-way. The Carrier argues that the Organization's members are not entitled to handle materials belonging to a third party.
The contract between the Carrier and National makes no reference to a sale or purchase of the ties. The contract does indeed assign ownership of the ties in question to National as soon as they have been taken from the track structure and released by the System Tie Gang. The remaining terms of the contract, however, call into question whether National's work in removing and disposing of the ties was more for the Carrier's benefit than for National's. There is no evidence in the record that National paid any consideration to the Carrier for the ties. Nor is this a barter arrangement with National performing the pickup and removal work in exchange for the ties. Even assuming areuendo that the ties constituted a portion of the consideration for National's work, another portion was paid directly by the Form 1 Award No. 37854
Carrier in accordance with the contract's "Schedule of Billable Service Items." In addition, the Carrier is required to pay disposal fees for any ties disposed of in an approved landfill. The contract between the Carrier and National simply does not bear the hallmarks of a sale. One generally does not pay a third party to remove and dispose of that third party's own property. The Board finds it noteworthy that the Carrier made no reference to the contract in question being a sale transaction in its August 5, 1999 notice of intent to contract, nor even in its correspondence subsequent to the Organization's claim in the instant case until February 21, 2001. Only then did the Carrier assert that "ties were picked up on an `as is, where is' basis and the ownership of the ties transferred to National Salvage." Insofar as the removal and disposal of ties was performed by National for the Carrier's benefit rather than in order to simply retrieve its own property, the Carrier's "as is, where is" defense must fail, under the particular circumstances of this case.
This conclusion as to the "as is - where is" issue does not resolve the entire matter, however. While the Carrier asserts that Carrier forces stockpiled the ties for National to pick up, the Organization asserts that in reality National cleaned the right-of-way of ties and performed general clean-up work. The facts as to who performed what work with regard to the ties were not fully developed in the record and remain somewhat confusing. Nevertheless, according to the Organization, the work National performed is reserved to Track and Roadway Equipment Subdepartments under Rules I through 5 of the parties' Agreement (governing Scope, Departments, Sub-departments, Seniority Groups and Classes, and Classification of Work) and Rules 9 (Track Sub-department) and 10 (Roadway Equipment Subdepartment). In addition, the Organization submits, the Carrier's August 5, 1999 notice regarding the work disputed herein was a flawed "blanket" notice in contravention of the good faith required by the December 11, 1981 Letter of Understanding. The Organization contends that in the absence of proper advance notice, the Organization is not required to show exclusive right to the disputed work, but only that the Track and Roadway Equipment Sub-departments have customarily and traditionally performed such work.
The Board finds that the notice provided by the Carrier in the instant case was sufficient to meet its obligations under the parties' Agreement, including the December 11, 1981 Letter of Understanding. The August 5, 1999 notice provided enough specificity to allow the Organization to determine if there might be a work Form 1 Award No. 37854
jurisdiction issue, and request a conference. In addition, the Organization failed to offer any evidence in support of its only specific allegation of lack of good faith by the Carrier - that the Carrier falsely asserted at conference that Carrier forces would stockpile the ties, but that National actually did stacking and "general cleanup." The Board finds that the Organization's contentions with regard to notice in the instant case are without merit.
The Board further finds that the Organization failed to demonstrate that any work performed by National was contractually reserved to the Organization's members. No express language in the parties' Agreement gives ownership of such work to those covered by the Agreement. Rule 1 of the Agreement, governing Scope, is general in nature, listing the positions covered by the Agreement without specifying any particular work reserved to them. The Board has ruled many times that Rule 1 thus does not provide any "exclusive grants of work" to the listed classifications.
In the absence of a contractual reservation of the work, as a matter of wellestablished arbitral precedent, the Organization must show that such work has been customarily and traditionally performed by the Organization's members systemwide, to the practical exclusion of others. The Organization provided no evidence whatsoever - for example, employee statements - in support of its assertion that its members have customarily or traditionally performed the work in question, or to the exclusion of others. In contrast, the Carrier submitted a summary of past subcontracting, initially provided to the Organization on February 16, 1997 (and subsequently updated) which stands unrefuted by the Organization in the instant case. The summary includes numerous occasions on which work very similar to that at issue here was contracted out (see e.g., contract for removal of replaced ties on the Nebraska Division; contract for purchase of removal of used ties in North Platte Yard; contract for sale and removal of used ties in Yermco, California; contract for purchase and removal of materials including ties at Loup City, Nebraska.) At best, the record shows that the Carrier has had a mixed practice with regard to assigning work of the type in question in the instant case. Where such mixed practice has existed, the Carrier is entitled to contract out the work under Section 52(b) of the parties' Agreement. Form i Award No. 37854
LABOR MEMBER'S DISSENT
TO
AWARD 37854. DOCKET MW-37027
(Referee Parker)
The Majority clearly erred when it rendered its decision in this case and a dissent is therefore required.
This case involved the Carrier contracting out the work of clearing of crossties that had been removed from the track structure by the Carrier's Maintenance of Way forces. Under date of August 10, 2000 and continuing, the Carrier assigned National Salvage and Service Corporation.
The Majority spends quite a lot of time and effort justifying the Carrier's actions as if the Organization did not even file a submission in this case. The record is replete with citations of previous awards involving these same parties wherein this Board has held that such work is reserved to Maintenance of Way employes. Those awards are in the record; however, you would not know that truth from reading this award. For the record, those awards are 28817, 29561, 30005, 30528, 31037, 31042, 31044, 31045, 32327, 37315, 37316 and 37572. The seminal award in this group for the purpose of establishing scope coverage is Award 28817, which held:
This award does not stand alone in these type of disputes. It simply is an abomination to now have an award that questions whether this type of work is scope covered. The findings of the Board in Award 28817 preserved the interpretation of contract language and was decisively upheld in subsequent Awards 29561, 30005, 31037, 31042, 31044, 31045, 32327, 37315, 37316 and 37572. The Majority's assertion that there were no statements presented by the Organization in this case was not necessary in light of the fact that the previously cited awards confirmed scope coverage. There was no need to further burden an already voluminous record with testimonials of past performance by the Maintenance of Way employes when the previously cited awards between the parties involving identical work held that this work is scope covered. Hence, the uninformed and erroneous comments by the Majority that questions the reservation of this work to Maintenance of Way employes is mind-boggling.
Finally, Award 37572 is the seminal award addressing the Carrier's purported "sales agreement". In this case, the Carrier clearly entered into a contract between it and National Salvage to perform the work of cleaning the right of way of the ties removed by the Carrier's Maintenance of Way employes. It should not have been hard to figure that out when the title of the document was: Labor Member's Dissent
Clearly, the Board found in Award 37572 that the Carrier's assertion that it had sold the ties in that dispute on an "as is, where is" basis was found not to be a bona fide "as is, where is" agreement. In this case, the contract provided to the Organization is support of its position and is identical to the contract at issue in Award 37572. In this case, there can be no doubt that the Carrier had substituted the Maintenance of Way employes for those of National Salvage. The behavior of the Carrier and the endorsement by the Majority in this case is simply at odds with the overwhelming precedent of this Board. Because the Board previously held that cleaning the right of way was work contractually reserved to BMWE forces, this case should have been sustained.