The Third Division consisted of the regular members and in addition Referee Martin H. Malin 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 a 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 April 4, 2005, the Carrier notified the Organization of its intent to contract out the work of demolishing portions of the existing fuel slab and constructing a new concrete feel pad and truck-washing pad at the Rensselear Yard. The notice advised the Organization that the project was expected to take four months to complete, at a total cost of $240,000.00. It further advised that the complexity, size and construction schedule required use of a contractor because:
It further stated that no employees would be furloughed as a result of the contracting. It enclosed a set of building plans.
The Organization responded by letter dated April 11, 2005, contending that the notice was vague, asking numerous questions and requesting a conference. The conference was held on April 28, 2005, but no agreement was reached. The Carrier proceeded with the contracting and the Organization filed the claim that is before the Board.
This claim raises issues concerning the interplay of Rules 1 and 24 of the Agreement. Rule 1, Scope, provides: Form 1 Award No. 40233
The Organization contends that the work that was contracted out is work that BMWE-represented employees had ordinarily and customarily performed. Consequently, the Organization urges, Rule 1 mandates that the work "win continue to be performed by those employees," and the contracting out of the work violated that mandate. Furthermore, the Organization maintains that the Carrier failed to establish a legitimate justification for the contracting. The Organization argues that the Carrier admitted that the employees possessed the skills needed to perform the work, but failed to attempt to assign them the work on overtime or by rearranging schedules. The Organization urges that the Carrier's assertion that it lacked sufficient manpower to staff the project cannot justify the contracting because the Carrier, over the years, Form 1 Award No. 40233
reduced the size of its force by attrition and with proper planning would have hired sufficient forces to perform the job. In this regard, the Organization relies on Public Law Board No. 6204, Award 33. In the Organization's view, the Carrier breached the obligation of good faith imposed on it by Rule 24.
The Carrier contends that the Organization failed to prove that BMWErepresented employees have ordinarily and customarily performed work of the magnitude of the Rensselear job. The Carrier further contends that it complied with Rule 24 by giving proper written notice of its intent to contract out the work and meeting with the General Chairman in an effort to reach an understanding. The Carrier argues that no employees were furloughed as a result of the contracting, but that the contracting was necessary because the project was beyond the capacity of the employees to handle in a timely manner. The Carrier notes that expeditious completion of the project was necessary to minimize the costs associated with alternate fueling and sanding of trains during construction. The Carrier urges that the employees were used to remove existing rail from the fuel pit track, reinstall it after reconstruction and build a concrete wash containment pad over drainage structures that the contractor installed. Citing Third Division Award 38195, the Carrier concludes that because the contracting did not cause any employees to be furloughed, the claim must be denied.
The threshold question presented is whether the Organization proved that BMWE-represented employees ordinarily and customarily performed work of the nature of the contracted project. There is no question that the employees performed and were capable of performing the work. The Carrier admitted as much when, following the Rule 24 conference, the Chief Engineer wrote:
the magnitude of the job. But, the Organization submitted a hand-written statement detailing eight significant construction jobs that the employees had performed in the past. When the Carrier responded that the eight jobs specified were "basic and simplistic in design and . . . not of the complexity of the design involved in this project," the Organization responded with a statement from one of the Claimants that provided a detailed description of a "similar concrete pad for a Salt Shed that was larger in size and just as complex in regards to the rebar installation as was the Fuel Pad." We conclude that the Organization has proven that the employees have ordinarily performed work of the nature of the work that was contracted.
However, just because the work fell within the scope of the Agreement does not mean that it may not be contracted out. The language of Rule 1 on which the Organization relies must be read in conjunction with Rule 24. As the Board stated in Award 38195:
The record is clear that the Carrier served the required notice and held the required meeting. It is also undisputed that no existing employees were furloughed as a result of the contracting. The Carrier argues that by serving the notice, conducting the meeting and not furloughing any employees, it met all of its obligations under the Agreement. The Carrier contends that such is the holding of Award 38195.
We do not read Award 38195 in the same manner as the Carrier does. It is true that Rule 24 prohibits contacting if the contracting results in a layoff, but it does not follow that the Rule allows contracting whenever no layoffs result. Award 38195 held as follows:
Thus, Award 38195 did not do away with the Carrier's obligation of good faith. It did not allow the Carrier to contract out arbitrarily as long as it does not result in layoffs. In this regard, Award 38195 is unremarkable - it holds that the Organization has the burden to prove the Carrier's lack of good faith. Such a holding is consistent with Rule 24.
In the instant case, the Organization asserted, but failed to prove, that rearranging employee schedules and assigning work on overtime would meet the Carrier's legitimate needs with respect to the project. Indeed, the primary thrust of the Organization's argument is that the Carrier must be acting in bad faith because it previously reduced the size of its force by attrition. As the Organization argued during on-property handling, "Every time someone leaves a job due to retirement or termination they are not replaced. The work force is being reduced and work opportunity is being lost to contractors."
In support of its position, the Organization relies heavily on Public Law Board No. 6204, Award 33. That Award, however, was not rendered on this property, but rather involved the Organization and the Burlington Northern Santa Fe Railroad Company. Because the Award did not quote the relevant Agreement language directly, we cannot tell whether the Agreement in that case contained a provision comparable to Rule 24. Unfortunately, for the Organization, the Agreement at issue in this case does not require the Carrier to restore the size of its workforce to a prior level before it may contract out to meet needs raised by the current level of its forces. Rather, it merely requires that the Carrier not contract out if doing so will result in the layoff of any current employees. There is no dispute that no current employees were furloughed. We conclude that the Organization failed to prove that the Carrier contracted out the work arbitrarily or otherwise in bad faith. Accordingly, the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Ciaimant(s) not be made.
LABOR MEMBER'S
CONCURRENCE AND DISSENT
TO
AWARDS 40233. 40234 and 40235
DOCKETS MW-39689. MW-39757 and MW-39795
(Referee Malin)
After careful consideration, I must concur in part and dissent in part to the findings of the Majority in Awards 40233, 40234 and 40235. In each of these three awards, the Majority found that the disputed work was ordinarily and customarily performed by BMWED represented employes and within the Scope of the Agreement. More specifically, the Majority held as follows in each of these awards:
I concur with the findings of the Majority that the work involved in Awards 40233, 40234 and 40235 was customarily performed by BMWE represented employes and within the Scope of the Agreement. Indeed, there could be no other reasonable conclusion because there was substantial evidence in each case that the employes had routinely performed the disputed work in the past and had all necessary skills to perform the disputed projects if only the carrier had assigned the work to them. This should have ended inquiry and all three claims should have been sustained.
However, instead of sustaining the three claims in question, the Majority instead denied these claims based on the contract language in Paragraph 4 of Rule 24 which provides:
After analyzing the above-quoted language, the Majority denied each of the claims in question based on the following observation:
Apparently, the union did not make it clear (and the Majority did not understand) that the language in Paragraph 4 of Rule 24 upon which it relied to deny the three claims in question was placed in all collective bargaining agreements in effect on Amtrak as a result of the Amtrak Reform and Accountability Act Pub L. No. 105-134 (1997) ("Amtrak Reform Act"). A review of the Act itself and its legislative history makes it transparently clear that the Amtrak Reform Act cannot be taken as overriding any part of the Amtrak collective bargaining agreements. To the contrary, the language of Section 121 of the Act adds to, rather than supercedes, the existing contractual restrictions on the contracting out of work. While the union may not have made the legislative history of the Amtrak Reform Act sufficiently clear in the record of these cases, that does not change the legislative history or Congressional intent. Consequently, I must vigorously dissent to the Majority's findings that the Agreement merely requires Amtrak not to contract out if doing so will result in the furlough of any current employes. That finding is clearly and unequivocally based on a misunderstanding of the intent of Congress when it enacted the Amtrak Reform Act and, as such, that finding has no precedential value.
The basis for my dissent in this case is not a matter of first impression. To the contrary, precisely the same issues were presented in cases decided by Award Nos. 1, 2 and 3 of Public Law Board No. 6671. A review of these three awards establishes the PL13 No. 6671 was a special board established specifically to resolve contracting out disputes on Amtrak and that in Case Nos. 1, 2 and 3 Amtrak and BMWE exhaustively briefed the legislative history and meaning of the Amtrak Reform Act and how the language from that Act came to be a part of every collective bargaining agreement in effect on Amtrak (See BMWE's position at PP.6-9 and Amtrak's position Labor Member's Concurrence and Dissent
It is transparently clear that the Neutral Member of PLB No. 6671 rendered a carefully reasoned and fully informed interpretation of the language in the Amtrak Reform Act (Rule 24, Paragraph 4 in the instant cases) after an exhaustive review of the legislative history that spawned the Act and the specific contract language in question. On the other hand, a review of Awards 40233, 40234 and 40235 and the records in those cases establishes that the complex legislative history and Congressional intent that spawned the language in Rule 24, Paragraph 4 was not in evidence before the Majority when it rendered its interpretation of that contract language. As a result, the Majority was unable to render a fully informed opinion and made an interpretation of the Amtrak Reform Act (Rule 24, Paragraph 4) which is in conflict with the more fully informed and carefully reasoned opinions in Award Nos. 1, 2 and 3 of PLB No. 6671. Consequently, I dissent with respect to the Majority's interpretation of Rule 24, Paragraph 4 and admonish the union that is incumbent upon it to make the legislative history and Congressional intent of the Amtrak Reform Act more clear in future cases if it intends to obtain a different outcome.