Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40466
Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
The Third Division consisted of the regular members and in addition Referee
M. David Vaughn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( HIT Rail Conference
PARTIES TO DISPUTE:
(BNSF Railway Company (former Burlington
( Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Pavers Contractors, Inc.) to perform Maintenance of Way
and Structures Department work (haul track panels and ballast)
from Carling and from the ballast stockpile in Lincoln Terminal at
Lincoln, Nebraska to new track alongside the F-3 Track and to the
switch by MG 05 on the south running track on April 8, 16, 19, 22,
23, 26 and 27, 2004 [System File C-04-C100-79!10-04-0234(MW)
BNRI.
(2) The Agreement was further violated when the Carrier failed to
provide the General Chairman with a proper advance notice of its
intent to contract out said work or make a good-faith effort to
reduce the incidence of subcontracting and increase the use of its
Maintenance of Way forces as required by Rule 55 and Appendix Y.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimant S. Thomas shall now be compensated for
fifty-four (54) hours at his respective straight time rate of pay."
Form 1 Award No. 40466
Page 2 Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
FINDINGS:
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.
Parties to said dispute were given due notice of hearing thereon.
The Claimant held seniority in the Maintenance of Way and Structures
Department as a Group 2 Machine Operator.
In a February 27, 2004 letter, the Carrier notified the Organization that it
would begin a construction and reconfiguration project at the Lincoln, Nebraska,
Yard. The notice stated the Carrier's intent for Maintenance of Way employees to
perform construction, realignment and installation of track structures and, on or
after March 15, 2004, to contract out work, including rerouting utilities (oil, gas,
water, sanitary sewer, storm drains) asphalt work, relocation of fencing, upgrading
of road or bridge structures and "dirt work" including inserting culverts, placement
of topsoil, soil compaction, sub-grade work, and embankment work. To assist
Carrier forces, the contractor would provide heavy equipment such as side booms
and cranes.
The notice stated that the Carrier's reason for contracting out this portion of
the work was that it did not have the equipment and skills necessary to complete all
aspects of the project. The Carrier offered as evidence the following email
statement of Assistant Roadmaster J. M. Chapple dated August 5, 2004:
"This was a very large project involving the replacement of 19
turnouts and extending several miles of track .... The BNSF does
Form 1
Page 3
Award No. 40466
Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
not possess the amount of equipment necessary to complete a project
of this magnitude, therefore machines and operators were
contracted to help complete this project on time . . . in conjunction
with the use of BMWE labor and machinery . . . ."
The parties held a conference in response to the notice, but without
resolution. Work began April 8, 2004. The Organization provided no affidavit,
document or other evidence to substantiate its assertion that the one contractor
employee at issue here drove a truck (the contractor's tractor attached to the
Carrier's lowboy flat bed trailer) for six hours on April 8 carrying track panels and
hauled ballast in a dump truck for eight hours on the other six days - a total of 54
hours. The Organization provided no affidavit, document, or other evidence to
substantiate what the Claimant's employment status was on those days. The
Carrier rejected the claim for 54 hours of straight time as excessive. It provided no
employment or contractor records, although it did assert that the Claimant worked
on April 8, 22, and 23 and lost no earnings for those days.
The Organization asserted, but provided no written statements, documents or
other evidence indicating that BMWE-represented employees had in the past
performed this type of work for the Carrier on a customary or exclusive basis to the
exclusion of contractors. The Organization's sole piece of evidence was a brochure
indicating that Hertz Equipment in Omaha, Nebraska, rented box dump trucks.
The language from the Parties' Agreement, provides as follows:
"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
Sub-Department . . . .
Track
Form 1
Page 4
Award No. 40466
Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
RULE 5. SENIORITY ROSTERS
Machine Operator Group 2
Group Two Machines
Tractor-Lowboy
RULE 55 CLASSIFICATION OF WORK
N. Machine Operator.
An employe qualified and assigned to the operation of
machines classified as groups 1, 2, 3, and 4 in
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 employer in the Maintenance of Way and
Structures Department:
Employer included within the scope of this Agreement . . . 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 in the
operation of the Company in the performance of common carrier
service ....
Form I
Page 5
Award No. 40466
Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
. . . [W]ork 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,
it 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
him for that purpose. Said Company and Organization
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.
Form 1
Page 6
Award No. 40466
Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
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."
The claim protesting the Carrier's action was timely filed and progressed on
the property in the usual manner up to and including the Carrier's highest
designated officer, but without resolution.
The Carrier asserts that the Organization failed to meet its burden of proving
that the Carrier violated the Note to Rule 55, Appendix Y or any other portion of
the Agreement. It points to the Note to Rule 55 which authorizes contracting "when
work is such that the Company is not adequately equipped to handle the work ...."
The Carrier points out that a timely notice was sent to the Organization
identifying the work to be contracted, along with the reason for doing, so and the
parties discussed the issue in conference, which it claims to have been in good-faith.
The Carrier contends that the Organization's Submission provides no
evidence that the work at issue here had historically, traditionally, and customarily
been assigned to Carrier forces to the exclusion of contractors, or that this work is
covered by the Agreement's Scope Rule. The Carrier argues that, in any case, it is
not required to piecemeal the work, that is, to give some to Organizationrepresented employees and to contract out the rest.
The Carrier contends that the Organization failed to meet its burden of
demonstrating a system-wide exclusive practice by which BMWE-represented
employees had a contractual right to performance of the work in question and,
further, that the Organization failed to meet its burden by providing any evidence
that the contractor's employee drove a truck on any specific date or for any
particular number of hours.
Form I Award No. 40466
Page 7 Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
The Organization acknowledges that the Carrier did provide notice of the
work to be contracted, however, it argues that (I) the assignment of this scopecovered work to an outside contractor violated the Agreement (2) the burden of
establishing an exception to the Scope Rule is the Carrier's and (3) the Carrier
failed to make good faith efforts to decrease outside contacting.
Finally, the Organization argues that the Claimant should be compensated
for the loss of work opportunities even if he was fully employed by the Carrier. It
asserts that such payments are required in order to police the Carrier's compliance
with the Agreement.
After a thorough review, the Board finds adequate evidence in the record to
determine that the Carrier provided the appropriate notice and conferenced the
issue. As the moving party, the Organization bears the initial burden of establishing
material facts necessary to make out a prima facie violation of the Agreement.
While the Organization argues that the hours worked by the contracted worker are
as stated in its claim, the Board determines that mere assertions do not serve as
evidence. The record contains no evidence to establish the type or amount of work
performed, and identifies no time, date, or individual performing the work. There
are no statements from other employees or even from the Claimant himself:
Without such threshold evidence, the Board is unable to make an informed
judgment concerning what work, if any, was done by the contractor or even where
or when it may have been done. The Board is compelled to deny the claim due to
the petitioner's failure to provide enough evidence to make even a prima facie case.
A careful review of the record convinces the Board that it contains no
evidence to indicate that the Carrier violated the Agreement. Accordingly, the
claim is denied.
Claim denied.
Form 1
Page 8
Award No. 40466
Docket No. MW-39399
10-3-NRAB-00003-060038
(06-3-38)
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 ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this
day of May 2010.
LABOR MEMBER'S DISSENT
TO
AWARD 40460, DOCKET MW-39276, AWARD 40461. DOCKET MW-39277
AWARD 40462, DOCKET MW-39278, 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 wise that reason does not prevail in railroad industry arbitration.
Despite all the faults built into this system, 1 am not willing to adopt the cynical conclusion that
reason has become meaningless. tnstead, 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 specifc
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: 'rhe 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 in 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
(land 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.
ti. 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 cones 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 cram 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 (?n 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 I 1, 1981 Letter of Agreement and
concluded that the application of the exclusivity test was inconsistent with that plain language:
"... IT]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 aB 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, 19&1 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.
2
1
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 I-louse
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 - 2009) 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 infra-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
was 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 (Benn - 1991
),
;ward 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 23217 (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 conflict 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 ctfully mitted,
Roy Robinson
Lab r Member