The Third Division consisted of the regular members and in addition Referee Brim C3auss when award was rendered.
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 Raillway Labor Act, as approved June 21,1934.
In a letter to General Chairmen Cover dated August 18, 2004, the Carrier stated, in pertinent part:
The Carrier initially contends that the Board does not have jurisdiction over the instant matter because the work was done exclusively in Canada, citing In the Form 1 Award No. 39943
Matter of the Arbitration between Brotherhood of Maintenance of Way Em loves, AFL-CIO and Burlington Northern, Inc., in support. There is no need for the Board to provide a lengthy recitation of the cited case - other than to state that the cited arbitration Award was decided by agreement of the parties under Chap L-1, Sees- M4-59 of the Labour Code of Canada. Canadian Labour Code is inapplicable to this matter and the Carrier's jurisdictional argument is rejected. The matter is properly before the Board.
The Organization maintains that the Notice of Intent was improper and that the bridge work was work customarily performed by Carrier forces. The Carrier responds that the Notice of Intent was proper and that the contracting of the work did not violate the Agreement.
The Rules require the Carrier to provide notice to the Organization of its intent to contract. Here, the Organization received the notice, but later challenged its form as improper alleging that it identified the contract work as already being scheduled. To the Organization, the contracting was a fait accompli and the scheduling of the work prior to the conference indicates bad faith by the Carrier. If the Carrier already scheduled the contracting work, the Organization maintains that the subsequent conferences could not have been in good faith. The Carrier counters that the Organization changed the claim because receipt of the notice of intent "in accordance with Rule 55" was acknowledged by the Organization in the initial claim, but the Organization later claimed that the notice was improper.
A review of the evidence before the Board indicates that the Organization's argument is not contradictory. The Organization acknowledged that the notice was sent in conformity with the Rule requiring notice of contracting to be sent to the Organization. However, the correspondence during the handling of the claim clearly indicates that the Organization saw the notice as improper and in bad faith. Acknowledging a notice sent pursuant to applicable Rule does not preclude a party from attacking the substance of that notice.
The Board carefully reviewed the evidence and that evidence does not support the Organization's claim that the notice was improper or in bad faith. Contracting with the third party prior to sending the notice, absent more, does not Form 1 Award No. 39943
establish bad faith by the Carrier. The Note to Rule 55 provides that the Carrier shall notify the Organization of the contracting not less than 15 days prior to the work. It further provides:
Under the above provision, the Organization is required to request a meeting to discuss the contracting work and pursue an understanding with the Carrier. That provision does not require that the Carrier must negotiate over the decision to contract prior to the Carrier entering into a contract. The Carrier met with the Organization and discussed the bridge work. No understanding was reached. Contras for the work and not reaching an understanding in conference about using Organization-represented employees, absent more, does not support the conclusion that the Carrier was operating in bad faith.
In addition to arguing that it did not possess the necessary off-track crane for the bridge work, the Carrier also argues that the location of the work is the controlling factor in deciding this matter and references the September 28, 1977 Letter of Agreement contained in Appendix K, No. 4 (N) of the Agreement. In its letter to the General Director of Labor Relations, the Organization maintained that the Carrier used American forces to supplement Canadian forces in the past and cannot show that sufficient manpower was lacking to perform the bridge work in British Columbia.
The Board carefully reviewed the evidence and finds that the 1977 Letter of Agreement is controlling. "[T]he Carrier may contract work in Canada covered by the scope of the Maintenance of Way Agreement when such undertaking is beyond capacity of employees working in Canada or Carrier does not have proper equipment in Canada." While Organization-represented employees living and working in the United States may have been available, the provisions of Paragraph 4 allow for contracting of the Canadian work in certain circumstances. The Carrier asserted that it did not have the Canada-sited employees or the requisite equipment. The Organization has not shown available Canadian-sited employees or available equipment in Canada.
In a thorough review of the record and the Submissions of the parties, the Board finds that the Organization has not met its burden. Accordingly, the claim is denied.
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 39943 Docket MW-38115
(Referee Clauss)
This dispute involved the Carrier's decision to contract out the dismantling and removal of a bridge in New Westminster, British Columbia. Ultimately, the Board held that location of the work placed it under the provisions of the September 28, 1977 Letter of Agreement and that the Carrier's decision to contract out the work was not in violation of the Agreement. That the Board reached such a conclusion is understandable based on the facts developed on the record. Had that been the sole issue to be considered here no dissent would have been required. However, this decision requires dissent because the Board made a threshold finding that runs contrary to the clear language and intent of the Agreement; particularly as it relates to the advance notice and meeting requirement stipulated in the language of the Note to Rule 55 and the promises codified within the December 11, 1981 Letter of Agreement (Appendix Y). Within its discussion the Board held:
The above-quoted finding is, on its face, erroneous. It is erroneous based upon a faulty reading and understanding of the language of the Note to Rule 55 and the promises codified within the December 11, 1981 Letter of Agreement (Appendix Y). The Note to Rule 55 very clear stipulates that, "In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the Labor Member's Dissent
Organization in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto, except in `emergency time requirement' cases. ***" The word "plan" refers to any method of thinking out acts and purposes beforehand. The phrase "contracting transaction" clearly refers to the agreement between the Carrier and a third party for performance of work. Thus, under the Note to Rule 55, when the Carrier PLANS to contract out work, it must provide written notice not less than fifteen (IS) in advance of the CONTRACTING TRANSACTION. The Carrier is in clear violation of the Note to Rule 55 if it has already consummated an agreement (entered into a contract) with a third party prior to providing advance written notice to the General Chairman and engaging in good faith pre-contracting discussions. Arty other reading of the Note is strained, at best. It is at the pre-contracting conference that the Organization is supposed to be given an opportunity to engage in good-faith discussion with the carrier regarding the planned/proposed contracting. For example, do the speck criteria listed within the Note to Rule 55 apply? Where is the work supposed to occur? When is it supposed to occur? In addition, the pre-contracting conference is where the Organization is supposed to be given a bonafide opportunity to persuade the Carrier not to use outside forces to perform the work. To ensure that there would be no misunderstanding with respect to the type of information required wig the advance notice, the parties elected to adopt and apply the provisions of the December 11, 1981 Letter of Agreement (Appendix Y). Said letter provides that the advance notices shall identify the work to be contracted out and the reasons therefore. The intent of the parties was to ensure that the Organization would be provided with complete and accurate information regarding each and every contracting out of work transaction contemplated by the Carrier in order to properly prepare for the good-faith discussions mandated by the rule. Under the Note to Rule 55 the advance notice must be given BEFORE the Carrier enters into a contracting transaction AND it must be discussed BEFORE the Carrier enters into a contracting transaction. Again, if the Carrier has already consummated an agreement to have outsiders perform work before discussing the matter with the Organization in accordance with the requirements of the Note to Rule 55; where is the good faith? Indeed, how could the Carrier possibly engage in good faith discussions with a deal already having been made? This leads us to the central point of this discussion relative to the instant case. In this instance, the Carrier provided the General Chairman with a notice stating: "This work is scheduled to begin September 5, 2000 and be completed by October 6, 2000." (Employes' Exhibit "A-l"). Hence, it is absolutely clear that the Carrier's advance notice was nothing more than advance notice that the Carrier had already entered into an agreement to have outsiders perform the work. The Carrier's notice did not Labor Member's Dissent
