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 Board has before it a docket of ten cases which concern the Carrier's use of outside contractors to perform work purportedly covered by the Scope Rule of the June 1, 1999 Agreement between the parties.' A brief overview of the arbitral precedent is warranted. However, the Board does not intend to repeat the exhaustive analysis contained in the three, most significant Awards addressing the issue of contracting out, nor to repeat the Scope Rule in its entirety in this decision.
The long and tortured history of disputes and negotiated agreements over the contracting out of work is detailed in the decisions of two Public Law Boards established between the Carrier and the Organization: Public Law Board No. 6508, Awards 1-8 (Douglas) and Public Law Board No. 6510, Award 1 (Goldstein). These decisions are concisely and accurately discussed in Third Division Award 37830 (Wallin). A close review of the arguments and evidence presented at the Referee
Hearing in the instant case, and others on the docket, demonstrate no basis to overturn the rationale and conclusions reached by Public Law Board Nos. 6508 and 6510, and Third Division Award 37830.
Succinctly stated, the essential principles to be applied in reviewing a claim of subcontracting under the "new" Scope Rule contained in the June 1, 1999 Agreement, as pronounced by these three prior decisions, consist of the following:
This dispute centers on the contracting out of track, bridge and structure dismantling and construction work. More specifically, the work involved the construction of 2,734 linear feet of temporary track; the removal of 3,000 feet of existing track and construction of a similar length of new track, the removal of the temporary track, and dismantling and construction of a bridge, abutment, head and retaining wall on the Oakpoint Subdivision of the Albany Service Lane. The work - was performed in conjunction with' the reconstruction of the Brooklyn-Queens Expressway in Bronx County, New York.
The Carrier issued notice of its intent to contract the work on May 4, 2001. It asserted contracting out was necessary due the work project being done in conjunction with the State of New York and its Brooklyn-Queens Expressway project. The Carrier stated in its notice that it did not have the equipment or manpower necessary to perform a project of such magnitude, there were no furloughed employees on the Mohawk Hudson Seniority District, and all other active forces were working other equally important projects, or performing routine maintenance work.
The Organization reasons that the work involved represents an essential element of the Carrier's operations as a common carrier. While the work is not routine maintenance, the BMWE-represented employees have performed such work whenever it has been needed. Not only has such work been historically performed by the employees in question, it is expressly spelled out in the Scope Rule. No emergency conditions were demonstrated to have existed. The very equipment that the contractor was to provide is the same equipment which the class of employees covered by the Agreement, in particular "A" Machine Operators and Vehicle Operators, must operate.
A copy of the Agreements between the contractor and the Carrier, and between the Carrier and the Department of Transportation of the State of New York were requested of the Carrier by the Organization, but never produced.
The work covered by the notice did not commence until February 3, 2003. The Carrier reasons that the Organization did not challenge the nature and extent of the notice dated May 4, 2001, and, therefore, the work falls outside of the Agreement's Scope Rule. The Organization, according to the Carrier, simply took no exception that the notice failed to cover the work at issue, and it never disputed that the work Form i Award No. 37985
involved was precipitated by the expressway reconstruction project. The Carrier did not choose to realign its track or benefit from doing so. In any event, the New York State Department of Transportation and the Carrier entered into an agreement on March 17, 2000, which provided that the state's Department of Transportation would maintain the structures and retaining wall at the specified location.
Moreover, the Carrier insists that while the Organization requested a copy of the contracts between the Carrier, the contractor and the State of New York, the former did not exist when the advance notice of intent to contract work issued and was discussed in conference, and no request was made for the latter agreement at the advance notice conference.
In any event, the Carrier submits that it demonstrated "a highly compelling reason(s)" to contract out the work, including the magnitude of the project and the lack of equipment and adequate forces. The work force was fully employed and occupied elsewhere. Finally, five of the Claimants are represented in another claim filed by the Organization which runs concurrent with the claim under consideration in this case.
From a careful examination of the extensive record and the Scope Rule, it is readily apparent that the work in question is expressly reserved to the Organization's members, including "all work in connection with the construction, maintenance, repair, inspection or dismantling of tracks, bridges, buildings, and other structures or facilities used in the operation of the carrier . . . ." The Organization established without question a prima facie claim of a Scope Rule violation because the specific work falls within the work identified in paragraph 2 of the current Scope Rule.
There is no probative evidence that the Carrier planned for performing the contested work with BMWE-represented employees. It simply offered "generalized reasons" that it possessed neither the equipment nor forces necessary to perform the project in the time frame required. There is no evidence of any effort by the Carrier to assign its work force to perform the work - a work assignment ultimately performed by 39 of the contractor's employees. In fact, the contract between the Carrier and the New York Department of Transportation was executed on March 17, 2000. (May 30, 2003, letter from the Carrier's Chief Regional Engineer for the Northeast Region). This is approximately one year prior to the notice of intent to subcontract, and almost three years before the actual work by the contractor began. Form I Award No. 37985
Needless to say, there was no showing of emergent circumstances in performing the contested work in coordination with the state's Department of Transportation.
The Board finds insufficient evidence, after employing a "strict scrutiny" standard of review, which would establish any compelling reason(s) to justify the Carrier's decision to employ a contractor in these circumstances. There is no showing with specificity of the equipment the Carrier did not possess or could not have acquired by lease or rental. (Public Law Board No. 6510, Award 1). The Carrier never produced the contracts documenting its agreement with the third party contractor, nor the agreement with the State of New York. It is incumbent upon the Carrier to comply with such requests for documentation in its possession, custody and control and such requests must be considered ongoing. It is not sufficient to raise as a defense that no such agreement with the contractor existed at the time of the notice of intent to contract, and maintain non-production was fully justified two years later after the contractor had commenced work. Nor is the duty to produce excused by the fact that the agreement to which the Carrier is a party may be available elsewhere in the public domain.
In sum, the Board finds a lack of evidence to support a finding that the Carrier could not have staffed, trained, equipped, and scheduled its own forces to perform the reserved work under the current Scope Rule. (Third Division Award 37835.) Finally, as to the appropriate remedy, Award 37835 at Page 13 states, as follows:
The Board concurs with the finding in Award 37835. However, with respect to five of the named Claimants in this case, C. Spike, F. Kovits,- R. Wolfanger, G. Walsworth, and D. Cook, the Carrier asserts that a contracting out claim for the same time period was pending for these employees. The Board notes that recently issued Third Division Award 37954 sustained a claim for each of these B&B employees covering work contracted out in Buffalo, New York, commencing February 3, 2003, and continuing for the man-hours expended by the outside forces. The Board agrees Form 1 Award No. 37985
that to the extent these five named Claimants are already being compensated for contracting out in violation of the Scope Rule for the same time frame, a remedy intended to compensate the five named Claimants for a lost work opportunity has already been satisfied. Moreover, the Board's compensation award to the remaining Claimants is more than sufficient to preserve the integrity of the Agreement.
Therefore, C. Spike, F. Kovits, R. Wolfanger, G. Walsworth, and D. Cook are entitled only to that amount by which their proportionate share of the total man-hours expended by the outside forces in the instant case may exceed the hours of their proportionate share of the total man-hours awarded to them in Third Division Award 37954.
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.