Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37947
Docket No. MW-36976
06-3-01-3-609

The Third Division consisted of the regular members and in addition Referee Joan Parker when award was rendered

(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe (former Burlington
(Northern Railroad Company)

STATEMENT OF CLAIM:





Form 1 Award No. 37947
Page 2 Docket No. MW-36976
06-3-01-3-609
three hundred thirty-four (334) hours time and one-half at
their respective rates of pay."'

FINDINGS :

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.




The Claimants are a Foreman, two First-Class Carpenters, a Truck Driver, and a Blacksmith/Crane Operator, all of whom hold seniority either within the B&B Subdepartment or Roadway Equipment Subdepartment.


The instant dispute began when the Carrier notified the Organization by letter dated December 12, 1996, of its intent to contract out work related to a siding track extension project, including the construction of two bridges, in the vicinity of lhlen, Minnesota. Specifically, the Carrier listed in its notice:










Form 1 Award No. 37947
Page 3 Docket No. MW-36976
06-3-01-3-609
By Carrier forces
Construct 1.11 miles of siding using conventional method
Construct 2 #20 T.O.'s
Rehab 1.19 miles of existing siding"

In response to the notice, the Organization requested a conference, which was held on January 9, 1997. By letter dated January 26, 1997, the Carrier rejected the Organization's objections to the work being contracted out. On May 30, 1997, the Carrier contracted with Lunda Construction Company (Lunda) to perform work including "Excavation, grading, placement of drainage structures, construction of bridges and placement of subballast relating to construction of siding track extension at Ihlen, MN ...."


On September 5, 1997, the Organization filed a claim contending that the Carrier's contracting for the building of two bridges at Ihlen was in violation of the parties' Agreement. The Carrier denied the claim. Having failed to reach a satisfactory resolution of the issues on the property, the parties submitted the dispute to the Board for final and binding resolution.






Rule 2 (Seniority :Rights and Sub-Department Limits) establishes that seniority rights generally are confined to the sub-department in which one is

Form 1 Award No. 37947
Page 4 Docket No. MW-36976
06-3-01-3-609

employed. Rule 5 (Seniority Rosters) provides for the compiling of seniority rosters in each sub-department by seniority districts and rank.


Rule 55 (Classification of Work) establishes occupations within the subdepartments, including "F. First Class Carpenter. An employee assigned to construction, repair, maintenance or dismantling of buildings or bridges . . . ;" and "I. Steel Bridge and Building Mechanic. An employee assigned to the setting of columns, beams, girders, trusses, or in the general structural erection, replacement, maintaining or dismantling of steel in bridges, buildings and other structures . . . " In addition, the parties' Agreement includes the following NOTE to Rule 55:




Form 1 Award No. 37947
Page 5 Docket No. MW-36976
06-3-01-3-609


Appendix Y to the parties' Agreement comprises a December 11, 1981 Letter of Understanding which states:




The Organization contends that BMWE-represented employees have a contractual right to perform the bridge construction work in dispute, under Rules 1, 2, 5, 55 and the Note to Rule 55. The Organization further argues that Carrier forces, including the Claimants, have customarily performed such bridge construction work, and provided statements, photographs and other evidence in support of its assertion. It is the Organization's position that the Carrier failed to demonstrate a valid justification for contracting out the work at issue as required by the Note to Rule 55. According to the Organization asserts, the Carrier alleged that the work in dispute was of a "nature and magnitude" customarily contracted out,

Form 1 Award No. 37947
Page 6 Docket No. MW-36976
06-3-01-3-609

and that the Carrier did not possess the necessary specialized equipment or skills to handle the work within the time necessary to complete it. The Organization contends that the Carrier's allegation in this regard was false, and that the Claimants could have performed the work in question using equipment owned or readily available to the Carrier.


As a first step along the road to prevailing, the Organization must prove that BMWE-represented employees have a right to the work at issue, either under the explicit terms of the parties' Agreement, or by virtue of past practice. With regard to the contractual provisions cited by the Organization as reserving such work to its members, the Board finds that there is no contractual language making such a reservation of work. Rule 1 of the Agreement, governing Scope, has been recognized many times by the Board as one general in nature and not conferring any ownership of work. Rules 2 and 5, regarding seniority, shed no light on the issue. Rule 55 is a classification rule only, as well-stated in Third Division Award No. 33938: "Authoritative precedent between these same parties holds that, standing alone, the Classification of Work Rule does not reserve work exclusively to employees of a given class : . . ."


In the absence of a contractual reservation of the work to the Organization's members, the Organization must show that such work has been customarily and traditionally performed by its members, systemwide, to the practical exclusion of others. See, e.g., Third Division Award 33938. The Organization provided evidence that the Claimants in the instant case have performed at least some work similar to that in dispute. However, the Carrier submitted evidence of hundreds of examples of new bridge construction projects that the Carrier contracted out over the last century, as well as statements from Structures supervisors and managers asserting that such projects have often been contracted out. In these circumstances, the Organization failed to prove that its members have performed the work in question to the exclusion of others, systemwide. At best, the record shows that a mixed practice has been followed with respect to using Carrier forces or a third party contractor to perform such bridge construction work.


Furthermore, without proving that the bridge construction work in question is reserved to its members, the Organization cannot prevail in its assertion that the Carrier violated the Note to Rule 55 by providing a `false' reason for the contracting

Form I Award No. 37947
Page 7 Docket No. MW-36976
06-3-01-3-609

out. Authoritative precedent dictates that the requirements of the Note to Rule 55 are not triggered unless the work at issue is work belonging exclusively to the Organization's members. See, e.g., Third Division Award 33938; Public Law Board No. 2206, Award 8. Where, as here, the work has been subjected to a mixed practice, the Carrier's reason for contracting out the work is irrelevant to its entitlement to do so. The Note to Rule 55 poses no restriction on the Carrier's ability to contract out in accordance with the parties' past practice.


The Board further notes that, even had the Organization been able to prove that its members exclusively performed the work in question systemwide, the Organization still could not have prevailed under the Note to Rule 55. Arbitral precedent between the parties has established that projects such as that involved in the instant case are of sufficient magnitude to meet the Note to Rule 55's requirements. Public Law Board No. 4768, Award 14 and 71.) The Organization also failed to prove its assertions regarding any lack of proper notice or good faith. The Carrier provided notice of its intent to contract out the work in question, and conferenced with the Organization as requested, even though such notice arguably was not required because the work to be contracted out was not within the exclusive province of the Organization's members.


Having found that the Organization failed to prove any violation of the Agreement, the Board must 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.



                      By Order of Third Division


Dated at Chicago, Illinois, this 19th day of September 2006.

LABOR MEMBER'S DISSENT

TO

Award 37947. Docket MW-36976

Referee Parker


Because the thoroughly rejected "exclusivity theory" was the pivotal underlying premise relied upon by the Majority in Award 37947, a dissent is required to emphasize its palpably erroneous conclusions which are worthless as precedent.


First, it is important to note, that the dispute involved this Carrier's decision to contract out a 1.11 mile-long siding track extension which included the subject construction of one 100 foot-long bridge and one 64 foot-long bridge at Ihlen, Minnesota beginning July 8, 1997. Although the Majority correctly noted that both the employes and the Carrier had presented evidence during the on-property handling in support of their respective positions concerning the past assignment of such work, it erroneously concluded that such constituted a "mixed practice" which fell short of the Note to Rule 55 requirement of customary performance to show that the work: belonged "exclusively" to the Organization's members.


"Exclusivity" vis-a-vis the "'notice" provisions of Article IV and rules such as the Note to Rule 55 which were taken verbatim therefrom, has been REJECTED by dint of arbitral authority. Hence, the Majority's decision revealed naivete or mindless haste to formulate an extremely narrow brand of industrial justice - or both. Selective quotation of two (2) awards from the same arbitrator can not serve to cure the infirmity because beginning with Arbitrator Dugan in Third Division Award 18305 (CMP), more than TWENTY (20) other arbitrators have unanimously rejected the application of "exclusivity" to the same contracting "notice" provisions - See Third Division Awards 19631 (IC) Brent; 19899 (SLF) J. Sickles; 23354 (Mil-KCS) Dennis; 23578 (LP) LaRocco; 24173 (CMP) Sirefman; 24236 (SLF) C. Sickles; 26016 (PPU) Gold; 26212 (SPE) Cloney; 2 6673 (MCR) Lieberman; 27012 (CRC) Marx; 27185 (CRC) Muessig; 27634 (CRC) Goldstein; 27650 (EJE) Suntrup; 28692 (TTR) McAllister; 28936 (SSY) Vernon; 29007 (MPR) Wallin; 29253 (KCS) Fletcher; 29021 (MPR) Marx; 29825 (MPR) Wesman; 29677 (MPR) Duffy; 29979 (SPE) Meyers; 31599 (KCS) Eischen; 31777 (LNR) Marx and 36015 (BN) Berm. The only reasonable conclusion being that Award 37947 is clearly anomalous and without precedential value.


The Majority compounded its calamitous "exclusivity" error by characterizing the subject work project, which involved just five (5) employes working normal hours for six (6) weeks, as being work of a magnitude beyond the capabilities of the Carrier's veteran B&B forces. On its face, this was both false and implausible. This Carrier has gangs much larger in number of men that customarily perform such work than the crew used by the contractor. Yet, the Majority ignored the obvious and provided encouragement to the Carrier's specious pitch - a pitch that will continue as long as there is one rube left at the Carnival with a nickle in his pocket. Because of the illogical findings of Award 3'1947, we submit it was wrongly decided and should not be followed nor cited as authori Le


                                  Roy C. obinson

                                  Labor ember