This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This case concerns the Carrier's use of outside contractors to perform work purportedly covered by the Scope Rule set forth in the June 1, 1999 Agreement between the parties. An extensive analysis of the issue of contracting out work is contained in the decisions of Public Law Board No. 6508, Awards 1-8 (Douglas) and Public Law Board No. 6510, Award 1 (Goldstein). The aforementioned decisions of Public Law Board Nos. 6508 and 6510 were subsequently addressed and discussed in Third Division Award 37830 (Wallin).
As stated in Third Division Award 37985 (Klein) there is no basis to overturn the rationale and conclusions reached by Public Law Board Nos. 6508 and 6510, and Third Division Award 37830. The essential principles to be applied in reviewing a claim of subcontracting under the Scope Rule contained in the June 1, 1999 Agreement, as pronounced by the decisions of Public Law Board Nos. 6508 and 6510, and Third Division Award 37830, were extensively detailed in Third Division Award 37985, and are incorporated herein by reference.
The Carrier used an outside contractor to operate its motor vehicles from one work location to another. Specifically, the Carrier utilized several employees of H&W Trucking to operate a fuel truck, bus and six-man "crew cab" pickup truck assigned to System Production Gang (SPG) C-4 from Harlan, Kentucky, to Evergreen, Alabama, on March 12-14, 2004. The aforementioned dates were on the Claimants' weekend rest days. The Carrier provided no notice to the Organization that it would be utilizing an outside contractor to transport its vehicles from one work location to another.
On March 23, 2004, the Organization filed a claim on behalf of each of the Claimants to protest the Carrier's violation of the Scope Rule and Rule 1 of the Agreement. The claim provides, in pertinent part, as follows: Form 1 Award No. 39279
The Carrier denied the claim on April 26, 2004, and each subsequent appeal submitted by the Organization thereafter was also denied. On January 20, 2005, the Organization advised the Carrier of its intent to file a Submission of the combined claims with the Board for final resolution.
The Organization contends that all work in connection with the maintenance and repair of tracks, and work which was being performed as of the effective date of the June 1, 1999 Agreement by employees of the classifications therein set forth, is reserved to BMWE-represented employees. Said work includes the operation of all vehicles used in connection with track construction, maintenance, and repairs and any other work traditionally performed by BMWE-represented employees. The work at issue in this case was clearly an overtime work opportunity reserved to BMWE members. Furthermore, the work of operating vehicles, including their transportation from one work location to another, has traditionally been performed by BMWE-represented employees. Therefore, the clear and unambiguous language of the Scope Rule fully supports the Organization's position in this case.
The Organization relies upon several Awards in support of its position that the work in question is reserved to BMWE-represented employees under both the Scope Rule and Rule 1 of the Agreement. Additionally, those Awards have also determined that said work has customarily and traditionally been assigned to and performed by BMWE-represented employees. Form 1 Award No. 39279
The Carrier compounded its violation of the Scope Rule in this case as a result of its failure to provide advance notice to the Organization of its intention to use an outside contractor to perform the work at issue. The Organization asserts that hundreds of Awards have sustained claims involving the Carrier's failure to comply with the advance notice and meeting requirements of the applicable Rules.
The Organization maintains that Arbitrator Douglas correctly concluded that the second paragraph of the Scope Rule clearly and plainly provides that only BMWE members have the right to perform the work enumerated therein. It notes that Arbitrator Douglas also held that the Carrier must demonstrate a highly compelling reason to rebut the very strong presumption that the work covered by the second paragraph of the Scope Rule will be performed by BMWE members. In the instant case, the Carrier essentially had no reason, much less a highly compelling reason, to assign the work in question to an outside contractor.
According to the Organization, there are four compelling reasons for awarding the requested remedy. First, protecting the integrity of the Agreement and the bargaining unit is particularly vital in contracting out work cases. Second, each of the Claimants clearly suffered a loss of overtime work opportunity. Third, the overwhelming precedent on this property and the formerly independent properties that merged to form the Carrier supports precisely the type of remedy requested in this case. Finally, the Organization notes that the Board in numerous Third Division Awards has ordered monetary awards to claimants at their respective time and one-half rates.
The Carrier's statement of the issue is, as follows: "Whether the Scope Rule of the System Agreement bars the Carrier from using a contractor to move its equipment and vehicles from one worksite to another worksite when the language contained in the Scope Rule does not reserve such work to members of the Organization."
The Carrier contends that the Scope Rule does not restrict its right and/or ability to contract with drivers to move its vehicles from one worksite to another worksite. The Carrier acknowledges that the Scope Rule provides that the work of "operating machines, equipment, and vehicles, transporting maintenance of way
Form 1 Award No. 39279employees" is reserved to members of the Organization. However, that is not the work at issue in this case. According to the Carrier, driving or transporting its vehicles over the road in this manner is not contemplated as scope protected work. The Organization failed to present any evidence in support of its position that the Carrier violated the Scope Rule when it utilized drivers from H&W Trucking on March 12, 2004, to transport vehicles from Harlan, Kentucky to Evergreen, Alabama.
According to the Carrier, this is not a new dispute between the parties and the decisions in previous cases involving similar circumstances have supported its right to utilize contractors to transport its vehicles and other equipment. The parties could have easily added language to the Scope Rule in the event that they desired to make over-the-road transportation of the Carrier's equipment and vehicles work reserved to BMWE members. However, they chose not to do so.
Furthermore, the Carrier contends that there is no provision contained in the Scope Rule which requires it to give prior notice to the Organization before it utilizes contractors to transport its equipment and/or vehicles over-the-road to another work site. The Scope Rule applies to contracting out work concerning the Carrier's operations on its right-of-way, and it does not apply to transporting its equipment over highways. The Carrier cited Special Board of Adjustment No. 1110, Award 55 in support of its position that it may utilize outside forces to transport its equipment without notifying the General Chairman.
The Carrier asserts that Rule 1 of the Agreement is merely a guide and it is not a Rule that conveys an exclusive right to perform specific work to a particular craft. It points out that various Awards have held that a primary function of a Classification Rule is to denote duties for setting rates of pay. A work classification Rule is not a grant of a right to perform enumerated duties. The Carrier also argues that the statements submitted by the Organization prove nothing in regard to the instant case. Additionally, statements provided by the Claimants can only be viewed as self-serving and cannot be considered probative evidence in any event. Furthermore, the statements in question lack testimony that the Claimants have exclusively performed the service of transporting vehicles and equipment over the highway. The Organization failed to refute the fact that the Carrier has a Form 1 Award No. 39279
documented history of using contractors to haul its vehicles and equipment over long distances.
For the following reasons, the Board fords that the Organization failed to satisfy its burden of proof that the Carrier violated the parties' Agreement under the facts and circumstances presented in this case when it assigned an outside contractor to operate three motor vehicles from one work location to another.
Paragraph 2 of the Scope Rule contained in the parties' June 1, 1999 System Agreement provides, in pertinent part; as follows:
Paragraphs 4 and 5 of the Scope Rule provide the following provisions regarding the Carrier's obligation to notify the Organization of its intent to contract out scope-covered work and a subsequent meeting regarding the matter if requested by the Organization:
As previously held by the Board, Paragraph 2 of the Scope Rule unequivocally provides that specific work is reserved to BMWE members. While the Organization correctly points out that the Scope Rule states that the work of operating machines, equipment and vehicles is reserved to BMWE members, the Board notes that the Scope Rule also requires that said work must be performed 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 in the performance of common carrier service on property owned by the carrier. In the instant case, the work that was contracted out by the Carrier was the transportation of three vehicles from one work location to another over the course of a weekend and on the Claimants' rest days. The Board finds that such work is not contemplated as scope covered work which is expressly and specifically reserved to BMWE members. There is no provision of the Scope Rule that prohibits the Carrier from utilizing the services of an outside contractor to operate or transport vehicles or equipment over the road from one work location to the next where they will then be operated by the Carrier's BMWE forces in connection with their work assignment at that location.
In circumstances where the work in question is not explicitly granted to BMWE-represented employees under the Scope Rule, the Organization must present sufficient evidence that said work was customarily or traditionally performed by those employees. Based upon the evidence of record presented in this case, the Board finds that the Organization failed to do so. The Board notes that although the Carrier may have assigned BMWE members to perform the task of transporting vehicles from one work location to another on certain occasions, there Form 1 Award No. 39279
has also been a long-standing practice of using outside contractors to perform such work. Thus, the Board finds insufficient proof that the work in question has been "customarily or traditionally" performed by BMWE members to the extent contemplated under the Scope Rule so as to reserve such work for BMWErepresented employees only.
The Board further concludes that the Carrier violated neither paragraph four nor paragraph five of the Scope Rule due to the fact that no notice was required regarding its intent to utilize an outside contractor to transport vehicles from one work location to another under these facts and circumstances. Accordingly, the claim is denied in its entirety.
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 39279 Docket MW-38655
(Referee Jonathon Klein )
Apparently, the Majority is unfamiliar with the operation of traveling gangs and the Organization failed to make those operations sufficiently clear. Once a gang is finished at one location the machines are loaded onto railroad flat cars for transportation to the new location. Historically, the vehicles were driven to the new location by the vehicle operators. Evidence presented by the Organization during the handling of this dispute on the property clearly showed that such was the case. The gang would have been unable to perform the next weeks Scope covered work without the vehicles, which included the gang bus to transport the employes to the job site as well as the truck with all of the gangs tools loaded thereon. To say that the movement of the vehicles "*** from one work location to another on certain occasions, there has also been a longstanding practice of using outside contractors to perform such work. Thus, the Board finds insufficient proof that the work in question has been `customarily or traditionally' performed by BMWE members to the extent contemplated under the Scope Rule so as to reserve such work for BMWE-represented employees only." is straining credulity.
The Organization was convinced that the language of the Scope Rule and Rule 1 was sufficiently clear to prove our case, however, it is apparent that we failed to convince the Board. In future cases, we shall inundate the Board with clear and convincing evidence of past practice of Maintenance of Way Employes performing such work.