The Third Division consisted of the regular members and in addition Referee Michael D. Gordon 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 Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
In 2004, General Electric ("GE") worked exclusively in a portion of the Galesburg, Illinois, Diesel Shop. On September 15, 2004, the Carrier wrote to the Organization about "Galesburg - Prefabricated Building for GE." The letter read:
The parties met and discussed the September 15 letter, but did not reach mutual agreement. Form 1 Award No. 40501
In fact, GE added prefabricated buildings in its area. One included a lunch room. GE initiated, planned, and controlled the project and paid its entire cost. After completion, both GE and Carrier employees used the lunchroom.
The disputed work was done by a Florida contractor chosen by GE. The contractor used three workers, 16 hours/day on October 15, 16, and 17.
The Claimants are a Foreman, an Assistant Foreman and a Shop Carpenter in the Bridge & Building Subdepartment. They were fully employed or on voluntary vacation at the time that the disputed work was performed.
The Organization contends that the Carrier violated Rules 1, 2, 4, 44, as well as the Note to Rule 55 and Appendix Y It contends that (1) the September 15 letter inconsistently and falsely asserted that the buildings were for GE's exclusive use and that it followed Carrier contracting out policies (2) the Carrier acted in bad faith in its purposefully misleading letter (3) assigning common, ordinary building work to outside forces violates Rule 55 and Appendix Y because it belongs to BMWErepresented employees (4) the building was not exclusively for GE because it benefited the Carrier and was used in common service (5) whatever reasons GE agreed to pay for the building construction and whom it chose to do the work are irrelevant (6) the Carrier's "fully employed" defense to the requested remedy lacks merit and (7) arbitral precedent favors the Organization.
The Carrier responds (1) evidence does not prove the claim (2) the prefabricated buildings are outside the Agreement's scope because construction was conceived, contracted, controlled, financed and used exclusively by GE (3) the Carrier had no dominion or control over any disputed work and did not use the prefab buildings for common service (4) although not required, the Carrier provided the September 15 notice as a courtesy and discussed the matter in good faith (5) use of the lunchroom by Carrier employees does not require that Carrier employees construct it (6) because Claimants either were fully employed or on voluntary vacation, they suffered no loss, thereby making any monetary award improper and punitive and (7) prior arbitration Awards support the Carrier. Form 1 Page 4
Given the lack of independent evidence of material omissions, intentional misstatements, or bad faith, the Organization's procedural notice argument is a mirror image of its substantive complaint. If it prevails on the merits, the notice argument becomes redundant. If it loses on the merits, its procedural position has no predicate.
On this record, there is no dispute that BMWE-represented employees perform the particular type of disputed work for the Carrier under normal circumstances. The threshold and decisive issue is whether the Carrier is bound by its subcontracting promises to the Organization when a lessee plans, controls and pays for subcontracting a prefabricated lunchroom on leased property when the lunchroom is used by employees of both the lessee and the Carrier.
The Carrier cannot do indirectly through a lessee what it cannot do directly. Still, subcontracting not performed at the Carrier's instigation, under its control, at
Elements in the balance have been repeated often. A carrier is not liable for subcontracting (1) where the work, while perhaps within its control, is totally unrelated to railroad operations (2) where the work is for the ultimate benefit of others, is made necessary by the impact of the operations of others on the Carrier's property and is undertaken at the sole expense of the other party and (3) where the Carrier has no control over the work force for reasons unrelated to having contracted out the work. See, Third Division Award 32941, as well as Public Law Board No. 6493, Award 43 and cases cited in them.
Virtually all factors in tests (1) and (2) support the Carrier. Nothing indicates subterfuge by the Carrier and GE. The single militating thread for the Organization is that Carrier employees use the lunchroom. However, the nature and extent of the use are far from clear.
The evidence consists of statements from one employee that Carrier employees use the lunchroom "all of the time" and are "the only people that I have seen use the lunchroom" and from another employee that "these buildings are used Form 1 Award No. 40501
by everyone working there be it GE or BNSF [personnel]." Contradictions between the two statements suggest that the first is not meant literally. As it is, it appears that employees from both employers use the facility, but the number, mix, and other circumstances are very murky. Moreover, nothing tells how frequently or at what times either declarant observed lunchroom operations. Nothing suggests that the presence of Carrier employees resulted from an agreement or arrangement between the Carrier and GE that benefits the Carrier in any significant manner. In short, the single fact favoring the Organization is insufficient to counterbalance the multiple factors supporting the Carrier.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.