performed by BMWE-represented employees, but the dirt and drainage work would be contracted out. The conference did not result in a resolution of the issue.

On October 13, 2003, the contractor's 12 employees began working nine hours per day, five days per week.

The Organization provided written statements from its members indicating that BMWE-represented employees had in the past performed various kinds of work for the Carrier, but submitted no evidence that dirt work had been customarily or exclusively performed to the exclusion of contractors.

The Agreement provides, in relevant parts:

"RULE 1. SCOPE

These rules govern the hours of service, rates of pay and working

conditions of all employes not above the rank of track inspector,

track supervisor and foreman, in the Maintenance of Way and

Structures Department, including the Track

Sub-Department ....

RULE 55 CLASSIFICATION OF WORK

NOTE to RULE 55

The following is agreed to with respect to the contracting of construction, maintenance or repair work, or dismantling work customarily performed by employes in the Maintenance of Way and Structures Department:

work in connection with the construction and maintenance or repairs of and in connection with the dismantling of tracks, structures or facilities located on the right of way and used in the operation of the Company in the performance of common carrier service ....

. . . [Work as described in the preceding paragraph which is customarily performed by employes described herein, may be let to contractors and be performed by contractors' forces. However, such work may only be contracted provided that special skills not possessed by the Company's employes, special equipment not owned by the Company, or special material available only when work is such that the Company is not adequately equipped to handle the work, or when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company's forces. In the event the Company plans to contract out work because of one of the criteria described herein, if shall notify the General Chairman of the 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 requirements' cases. If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the Company shall promptly meet with

representative shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached the Company may nevertheless proceed with said contracting, and the Organization may file and progress claims in connection therewith.

Appendix Y.

The carriers assure you that they will assert good-faith efforts to

reduce the incidence of subcontracting and increase the use of their

maintenance of way forces to the extent practicable, including the

procurement of rental equipment and operation thereof by carrier

employes.

The parties jointly reaffirm the intent of Article IV of the May 17,

1968 Agreement that advance notice requirements be strictly

adhered to and encourage the parties locally to take advantage of

the good faith discussions provided for to reconcile any differences.

In the interests of improving communications between the parties on

subcontracting, the advance notices shall identify the work to be

contracted and the reasons therefore."

A claim protesting the Carrier's action was timely filed and progressed on the property in the usual manner, up to and including the highest designated official, but without resolution.

The Carrier argues that the Organization failed to meet its burden of proving that the Carrier violated the Note to Rule 55, Appendix Y or any other provision of the Agreement. It asserts that Rule 1 is a general Scope Rule and does not delineate any particular tasks that the Carrier is responsible to reserve to BMWErepresented forces and that in such instances, it is the Organization's burden to prove that past work has been assigned to its members exclusively.

The Carrier asserts that, notwithstanding the Claimants' allegations to the contrary, the Organization provided no evidence showing that the dirt work at issue here had "historically, traditionally, and customarily" been assigned to B&B forces to the exclusion of contractors, or that this work falls within the scope of the Parties' Agreement. It contends that the Organization failed to submit evidence of a systemwide exclusive practice that BMWE-represented employees have a contractual right to performance of the work in question. The Carrier argues that, in any case, it is

(06-3-23)

not required to piecemeal the work, that is, to give some to Organizationrepresented employees and to contract out the rest.

The Carrier cites, in support of its position, the following language in onproperty Award 34212 which involved the Carrier's contracting out construction of the grade for a siding:

"[W]e find that there is no Rule in the Agreement that requires the Carrier to assign all fill, compaction, and grading work to BMWErepresented employees. The Rule does not discuss grading or compaction, and it does not indicate any particular task that must be assigned to the employees of the Carrier .... [T]here is no showing that the Organization-represented employees have performed the work customarily or exclusively in the past."

The Carrier also cites on-property Public Law Board No. 4104, Award 13 in which it was held:

"[T]he claim must be denied .... First, no rule in the Agreement specifically reserves the disputed work to the Organization. Rule 1, the Scope Rule does not deal specifically with this issue. Furthermore, Rule 55, cited by the Organization, is a Classification of Work Rule. It is well established that `Classification Rules do not reserve work exclusively to employees of a given class."'

In response to the Organization's allegation that the Classification of Work Rule - Rule 55 - reserves the work in question to the Claimants, the Carrier argues that it has been well established that Classification Rules are not Scope Rules and, therefore, do not guarantee work assignments. It cites Third Division Award 19922, in which the Board denied a claim alleging that the Classification of Work Rule in effect on that property guaranteed a particular assignment to BMWE-represented employees:

"We have held in many prior Awards that Classification Rules do not reserve work exclusively to employees of a given class (Award

Form 1 Page 7

Award No. 40464
Docket No. MW-39397
10-3-NRAB-00003-060023
(06-3-23)

13638, 17421, 18471, 18876 and others). Petitioner had the burden of establishing the exclusive right to work in question by evidence of a system-wide practice . . . ."

The Carrier again points the Board to on-property Public Law Board No. 4104, Award 13 as holding that Classification Rules do not guarantee any particular work assignment to employees. That Award provides:

"The Organization contends that Rule 55 R and Q require that the disputed work be performed exclusively by members of its craft. In addition, it submits that its forces have customarily engaged in this work. Therefore, it argues, that the Agreement and the practice of the parties compels a sustaining award.

After reviewing the record, the Board is convinced that the claim must be denied. This so for a number of reasons. First, no rule in the Agreement specifically reserves the disputed work to the Organization. Rule 1, the Scope Rule, does not deal specifically with this issue. Furthermore, Rule 55, cited by the Organization, is a Classification of Work rule. It is not a Scope Rule. It is well established that Classification Rules do not reserve work exclusively to employees of a given class."

The Carrier also draws the Board's attention to on-property Award 36282 which involved the closely related fact pattern of contracting out dirt work while assigning BMWE-represented employees to install new track, ties, and ballast. It states:

"Discussions of the proposed contracting out were held. But the Organization was unable to persuade the Carrier to assign the other portions of the project, particularly the `dirt work,' to the Carrier's employees. A grievance followed.

Form 1 Award No. 40464
Page 8 Docket No. MW-39397
10-3-NRAB-00003-060023
(06-3-23)
This case is closely related to the dispute in Third Division Award
36280. It presents much the same evidence with respect to
essentially the same issue. The Board finds, as it did in Third
Division Award 36280, that the record fails to establish that the type
of work in question has been done exclusively by Carrier employees
in the past. Such work has no doubt been assigned to such
employees on occasion, but it has also been assigned to contractors.
Given these circumstances, the Organization's claim is without
merit."

The Carrier argues that a timely notice was sent to the Organization identifying the work to be contracted along with the reasons for doing so and that the parties discussed the issue in conference in good-faith. It denies any violation of the notice requirements of the Agreement.

The Carrier argues, contrary to the Organization's position, that even if there were a basis for sustaining a claim, no compensation should be awarded where the Claimants are fully employed and suffer no loss.

The Organization acknowledges that the Carrier provided notice of the work to be contracted, however, it argues that the Carrier gave no reason for contracting out the work. It asserts that the Carrier failed to conference the matter in good faith.

The Organization argues is that the dirt work at issue here had "historically, traditionally, and customarily" been assigned to the Carrier's B&B forces and that "exclusivity" is not the appropriate test to apply. The Organization argues, in addition, that assignment of this scope-covered work to an outside contractor violated the Agreement. It asserts that the burden of establishing an exception to the Scope Rule is the Carrier's, and that it failed to meet its burden.

The Organization argues that no special equipment or skills were needed or used to perform the work at issue, that the Claimants were available and fully qualified to perform the work, that the Carrier's contracting of the work was an accomplished fact before conference discussions were held, if not before the notice,

Form 1 Award No. 40464
Page 9 Docket No. MW-39397
10-3-NRAB-00003-060023

(06-3-23)

that the Carrier failed to make good faith efforts to decrease outside contacting, and that it failed to make good faith efforts to increase the use of BMWE-represented employees to the extent practicable.

The Organization argues that the Claimants should be compensated for lost work opportunities irrespective of their fully employed status in order to redress the Carrier's violation.

The Board carefully studied the record. It concludes that the Carrier provided the appropriate notice and conferenced the issue. Past Awards, including those cited above, have established that Classification Rules are not Scope Rules and, therefore, do not guarantee work assignments. The language of the Agreement establishes that the Scope Rule of the Agreement is a general Rule and that, in order to establish a violation, the Organization must prove that the work contracted out must have been customarily performed by craft employees on a system-wide basis.

The Board does not find evidence of record that Carrier employees customarily performed "dirt work" to the exclusion of contractors.

The Board notes the Carrier's commitment to use its employees and to minimize the use of contractors. However, there is no proof that its employees were available to perform the dirt work in the time from allocated for the project.

The Organization bears the burden of proving that the Carrier violated the Agreement by subcontracting the disputed work. It failed to meet its burden. Because the evidence in the record does not support a violation of the Agreement, the claim is denied.

AWARD

Claim denied.

Form 1
Page 10

Award No. 40464
Docket No. MW-39397
10-3-NRAB-00003-060023
(06-3-23)

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD AD.h

By Order of Third Division

Dated at Chicago, Illinois, this 14th day of May 2010.

BOARD

LABOR MEMBER'S DISSENT

TO

AWARD 40460 DOCKET MW-39276, AWARD 40461, DOCKET MW-39277

AWARD 40462 DOCKET MW-3927$ AWARD 40464, DOCKET MW-39397

AWARD 40466 DOCKET MW-39399, AWARD 40467, DOCKET MW-39400

(Referee Vaughn)

One school of thought espoused by some rail industry advocates is that dissents are an exercise in futility because they are not given much weight by subsequent Referees. This Labor Member does not adhere to that school because to accept the theory that dissents are futile is to necessarily accept the premise that reason does not prevail in railroad industry arbitration. Despite all the faults built into this system, I am not willing to adopt the cynical conclusion that reason has become meaningless. Instead, I accept the inexorable logic that the precedential value of an award is proportionate to the clarity of reasoning in the award. Without offering a shred of reasoning or explanation, Awards 40460, 40461, 40462, 40464, 40466, and 40467 applied the so-called exclusivity test to contracting out disputes in direct conflict with the: (1) black letter and spirit of the Agreement; (2) well-reasoned precedent on this property; and (3) dominate precedent across the rail industry, including the Neutral Member's own prior findings. Consequently, these awards are outliers that should be afforded no precedential value and I am compelled to vigorously and emphatically dissent to each of them.

1. Clear Contract Language

The application of the so-called exclusivity test to contracting out disputes on this carrier is in direct conflict with the clear contract language. Without providing any analysis or reasoning the Neutral Member declares that these contracting out disputes were controlled by the general Scope Rule. But this declaration ignores the fundamental principle that specific language in an agreement supercedes a more general clause and that the parties themselves wrote a specific provision that expressly controls contracting out. That provision, the Note to Rule 55, provides as follows:

"NOTE to Rule 55: The following is agreed to with respect to the contracting of construction, maintenance or repair work, or dismantling work customarily performed by employes in the :Maintenance of Way and Structures Department:

Employes included within the scope of this Agreement--in the Maintenance of Way and Structures Department, including employes in former GN and SP&S Roadway Equipment Repair Shops and welding employes-- perform work in connection with the construction and maintenance or repairs of and in connection with the dismantling of tracks, structures or facilities located on the right of way and used its the operation of the Company in the performance of common carrier service, and work performed by employes of named Repair Shops.

By agreement between the Company and the General Chairman, work as described in the preceding paragraph which is customarily performed by employes described herein, may be let to contractors and be performed by contractors' forces. However, such work may only be contracted provided that special skills not possessed by the Company's employes, special equipment not owned by the Company, or special material available only when applied or installed through supplier, are required; or when work is such that the Company is not adequately equipped to handle the work, or when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company's forces. ***"

It is transparently clear that the general Scope Rule identifies the employes "included within the scope of this Agreement" and that the specific language of the Note to Rule 55 expressly controls contracting out of work "customarily" performed by those employes. A schoolboy with a dictionary could readily determine that "customarily" does not mean "exclusively". Humpty Dumpty would be right at home with these Awards: "When I use a word," he told Alice, "it means just what I choose it to mean - neither more or less." Only in Wonderland - or in these Awards - could "customarily" be taken to mean "exclusively".

In addition to the adoption of the "customary" standard in the specific contracting provisions of the Note to Rule 55, the parties subsequently adopted the specific contracting out provisions of the national December 11, 1981 Letter of Agreement (codified in Appendix "Y"), which provides:

"The carriers assure you that they will assert good-faith efforts to reduce the incidence of subcontracting and increase the use of their maintenance of way forces to the extent practicable, including the procurement of rental equipment and operation thereof by carrier employes.

The parties jointly reaffirm the intent of Article IV of the May 17, 1968 Agreement that advance notice requirements be strictly adhered to and encourage the parties locally to take advantage of the good faith discussions provided for to reconcile any differences. In the interests of improving communications between the parties on subcontracting, the advance notices shall identify the work to be contracted and the reasons therefor."

Attempting to apply an exclusivity standard in the face of an express contractual obligation to make "good-faith" efforts to reduce the incidence of subcontracting" is like trying to pound a square peg into a round hole - it simply can not be done without mangling the peg and the hole. Clearly, work that may have been contracted out under one set of circumstances
(and thus not "exclusively" performed by company employes) could be performed by those employes under a different set of circumstances if the company made a good-faith effort to reduce subcontracting. Indeed, the entire notion of "good-faith efforts to reduce the incidence of subcontracting" implies that work that had previously been contracted will be returned to the carrier's employes.

lI. Construing The Agreement As A Whole

It is by now axiomatic that Agreements must be construed as a whole so as to give meaning to all parts of the Agreement. Applying the so-called exclusivity test to contracting out disputes is not only contrary to the black letter of the Note to Rule 55, but also in direct conflict with the spirit and intent of that provision as a whole. Unlike class or craft disputes where a class or craft of employes claims a right to perform certain work to the exclusion of all other employes, the Note to Rule 55 does not contemplate (and BMWED does not claim) an exclusive reservation of work as against contractors.

Instead. the Note to Rule 55 provides that work customarily performed by Scope covered employes may be contracted for the reasons expressly set forth in the Note (e.g., special skills, special equipment, special material and emergency time requirements). In light of these exceptions, it's safe to say that virtually any work customarily performed by employes within the Scope of the Agreement may have been contracted out at some time in the past and, therefore, none of this work would have been exclusively performed by Scope covered employes. In other words, applying the exclusivity test as the seminal test for the application of the Note to Rule 55 destroys the Note to Rule 55. Indeed, applying the exclusivity test would destroy the entire collective bargaining agreement because it drains all work from the Agreement and all terms and conditions of the Agreement attach to the performance of that work.

Ill. Precedent On The Property

In addition to ignoring the black letter and spirit of the Agreement, the Neutral Member ignored well-reasoned precedent on this property. Indeed, there is substantial precedent on this property that has rejected the application of the exclusivity test in contracting out cases because that test is in conflict with the plain language as well as the spirit and intent of the Agreement. For example, Award No. 20 of Public Law Board No. 4402 (Benn - 1991) carefully examined the plain language of the Note to Rule 55 and the December 11, 1981 Letter of Agreement and concluded that the application of the exclusivity test was inconsistent with that plain language:

s`... JT]he Board takes guidance from Awards which distinguish `customarily performed' from `exclusively'. Citation of only a few of these will suffice.

Third Division Award No. 26174 (Gold) states:

While there may be a valid disagreement as to whether the work at issue was exclusively reserved to those employes, there can be no dispute that it was customarily performed by Claimants.

Third Division Award No. 27012 (Marx) states as follows:

The Board finds that the Carrier's insistence on an exclusivity test is not will founded. Such may be the critical point in other disputes, such as

determiningwhich class or craft of the Carrier's employees may be entitled to perform certain

work. Here, however, a different test is applied. The Carrier is obliged to make notification

where work to be contract out is `within the scope' of the Organization's Agreement. There is no serious contention that brush cutting work is not properly performed by Maintenance of

Way employes, even if not at all locations or to the exclusion of other employees . ...

`Therefore, we find that the Organization need not demonstrate exclusivity to prevail under the Note to Rule 55 and the December 11, 1981 letter. The exclusivity principle is for analysis of disputes determining which class or craft of the Carrier's employees are entitled to perform work and is not relevant to contracting out disputes. The Organization must, however, demonstrate that the employees have `customarily performed' the work at issue. Given the descriptions of undercutting work found in the Agreement and further given the statements of the employees submitted by the Organization showing the extent of that work previously performed, we find that the Organization has demonstrated that the employees have customarily performed' undercutting work."

t The difference between the definition of `customarily' and the more restrictive `exclusive' is significant. `Customarily' is defined as `usual ... conventional, common, regular.' `Exclusive' is defined as `not admitting of something else; incompatible ... shutting out all others.' The Random House Dictionary of the English Language (2nd ed.). Therefore, work can be customarily' performed while not being `exclusively' performed. Further, riven the prior extensive use of the word `exclusive' in this industry, the failure to include that language in the relevant agreements but rather using

the word `customarily' supports the conclusion that the parties did not intend to apply the exclusivity principle to contracting out issues.

'` We recognize that there is a split in authority on this question and that awards exist requiring a demonstration of exclusivity. However, we believe that the basic principle of contract construction discussed above concerning manifestation of intent through the clear language of `customarily' rather than `exclusively' along with the rationale of those awards that do not adopt the exclusivity requirement are the better reasoned approaches to this question." (Emphasis in original)

Similarly, in Award 39685 (Brown - 20099) involving these same parties, this Board held that bargaining unit work is the life blood of the collective bargaining agreement and that the application of the exclusivity test to contracting out cases undermined the very essence of the Agreement:

"As the Board has noted in prior Awards, there are different standards for resolving intra-craft jurisdictional disputes and the contracting out of work. For the former, it is well established that the Organization must demonstrate exclusive performance, system-wide, by the classification claiming that work leas improperly assigned. See Public Law Board No. 2206, Award 55, as well as Third Division Awards 757, 4701, and 37889.

The right to subcontract work is a different story; retention of bargaining unit work is the life blood of a Collective Bargaining Agreement. This has been an issue of contention for many years and the record reveals repeated promises by the parties to reduce contracting out where possible by a combination of defining what work may be contracted out and under what circumstances with a pledge for good-faith discussion to increase work by members of the bargaining unit. This issue goes to the heart of job security for employees.

For this purpose, bargaining unit work is defined by a combination of the Scope Rule, classification specifications set forth in Rule 55, and some custom. ***"

Award 39685 and Award No. 20 of PLB No. 4402 hardly stand alone. To the contrary, over the last two decades, six different arbitrators (Marx, Berm, Kenis, Zusman, Suntrup and Brown) have carefully analyzed the Note to Rule 55 and Appendix Y and repeatedly held that the so-called exclusivity test does not apply to contracting out cases on this property. See Award No. 1 of PLB No. 4768 (Marx - 1990), Award No. 21 of PLB No. 4402 (Bean - 1991), Award No. 25 of PLB No. 4768 (Marx - 1992), Award No. 61 of PLB No. 4768 (Marx - 1995), Award 36015 (Benn - 2002), Award 37901 (Kenis - 2006), Award 38010 (Zusman - 2007) and Award No. 33 of PLB No. 6204 (Suntrup - 2007).
Notwithstanding the fact that a plethora of awards that rejected the application of the exclusivity test to contracting cases on this property were cited in the Organization's submission and handed to the Neutral Member during Panel Discussion, he failed to even acknowledge their existence, much less distinguish them or assail their reasoning and logic. In sum, Awards 40460, 40461, 40462, 40464, 40466, and 40467 are not simply poorly reasoned when it comes to the exclusivity issue, they are a bereft of any reasoning at all and therefore should be afforded no precedential value.

IV. Prevailing Industry-Wide Precedent

In addition to the well-reasoned awards which reject the application of the exclusivity test on this property, the prevailing precedent across the rail industry rejects the so-called exclusivity test in contracting out cases. This precedent is particularly pertinent to the instant cases because the Neutral Member in the instant cases has previously rejected the application of the exclusivity test in contracting out cases. In Third Division Award 25934 (Vaughn - 1986), the Neutral Member unequivocally rejected the application of the exclusivity to the subcontracting cases as follows:

`Further, the Board holds that the Organization does not here carry the burden of demonstrating exclusivity because that doctrine is not applicable to situations where work is contracted to an outside contractor. See, e.g., Third Division Award 2.321"7 (citing Award 13236, which held that `The exclusivity doctrine applies when the issue is whether Carrier has the right to assign work to different crafts and classes of its employees - not to outsiders.')"

The Neutral Member was hardly sailing in unchartered waters when he rejected the application of the exclusivity test to contracting out disputes in Award 25934 in 1986. To the contrary, his 1986 award shows that he was adhering to the well-established precedent typified in Award 13236 (Dorsey - 1965) and Award 23217 (Larney - 1981). Moreover, other referees apparently recognized that Award 25934 was well reasoned and represented the prevailing precedent on the exclusivity issue because Award 25934 (Vaughn - 1986) was cited as authority for the proposition that the exclusivity test does not apply in contracting out cases in Third Division Awards 29878 (Goldstein - 1993) and 40212 (Campagna - 2009). Of course, all of these awards are consistent with more than fifty years of precedent holding that the so-called exclusivity test applies to class or craft disputes and has no application to contracting out cases. See Third Divisions Awards 11733, 13236, 14121, 23219, 24230, 24280, 27012, 27634, 27636, 28612, 38735, 29021, 29033, 29034, 29430, 29432, 29547, 29677, 29912, 30194, 21049, 31149, 31385, 31386, 31388. 31777, 32160, 32307, 32560, 32701, 32711, 32748, 32777, 32858, 32861, 32862, 32863. 32922, 32938, 35378, 35529, 35531, 35635, 35841, 35850, 36015, 36022, 36175, 36517, 36829, 37001, 37002, 37046, 37471, 37901, 38042, 38349, 39302, 39520, 39521, 39522, 40078, 40212, 40253 and 40373.

IV. Conclusion

The Neutral Member's application of the exclusivity test to contracting out disputes in Awards 40460, 40461, 40462, 40464, 40466, and 40467 is in direct convict with the clear language and spirit of the Agreement, well-reasoned on-property precedent, industry-wide precedent and the Neutral Member's own prior rulings on this issue. Notwithstanding the fact that these prior awards were clearly cited and provided to the Neutral Member, he failed to even acknowledge their existence, much less distinguish them or assail their reasoning and logic. Thus, Awards 40460. 40461, 40462, 40464, 40466, and 40467 are not simply poorly reasoned, but have no reasoning at all to support their conclusions and therefore, I emphatically and vigorously dissent and assert that these awards should be afforded no precedential value.

es etfully mitted,

J a-Ce~_

Roy . Robinson

Lab r Member