The Third Division consisted of the regular members and in addition Referee M. David Vaughn when award was rendered.
Form I
Page 24. As a consequence of the violations referred to in Parts (1) and/or (3) above, Claimants D. Klaus, R. Burhoop and J. Mammen shall now each be compensated for fourteen (14) hours at their respective straight time rates of pay."
As a consequence of the violations referred to in Parts (2) and/or (3) above, Claimants D. Klaus, R. Burhoop and J. Longfellow shall now each be compensated for eight (8) hours at their respective straight time rates of pay."
Claimants Klaus, Burhoop and Mammen hold seniority as Truck Drivers and Claimant Longfellow holds seniority 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 to contract out work on or after March 15, 2004 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, subgrade work, and embankment work. The contractor would be responsible for stormwater management. The notice specified that "Carrier forces do not have the equipment and skills necessary to complete all aspects for the project that will be contracted out." The Carrier indicated that the above described work was Form 1 Page 3
consistent with its historical practice of contracting out such work. After detailing activities to be contracted, the notice listed work that would not be contracted. It declared, "Carrier forces will be responsible for the construction, realignment and installation of the track structures associated with this project."
Work began on April $, 2004. On April 21 and 22, 2004 the contractor used three of its dump trucks and three drivers to haul material loaded into them by a BNSF front-end loader. The three contractor employees worked seven hours each day. The material hauled was for the purpose of building a pad to assemble new track switches prior to their final installation in the track.
On April 27, the contractor used one of its employees to operate its front-end loader to fill two of its dump trucks used to haul material. In this instance, each of the three contractor employees worked eight hours.
As to claim C-04-CI00-77/10-04-0232(MW) BNR ["Claim 77"] the Organization provided written employee statements to substantiate the hours that three contractor employees worked on April 21 and 22, 2004.
As to claim C-04-0100-78/10-04-0232(MW) BNR ["Claim 78"] the Organization provided allegations but no affidavit, statement, or other evidence regarding work performed by contractor employees on April 27, 2004.
As to both claims, the Claimants were qualified to do this work, had performed it in the past and held appropriate seniority on the three days specified. Contractor employees who performed this hauling work hold no seniority or work rights under the Agreement. The Organization provided no evidence to substantiate what each Claimant's employment status was on April 21, 24 or 27.
The Carrier rejected the claims for straight time pay as unwarranted and excessive. It provided no employment records of the Claimants' hours worked on each of the three days although it did assert that the Claimants were "fully employed" and therefore lost no earnings for those days. The Organization did not refute these allegations as to the Claimants being fully employed on the dates at issue. Form 1 Page 4
These rules govern the hours of service, rates of pay and working conditions . . . in the Maintenance of Way and Structures Department.
Rights accruing to employes under their seniority entitles them to consideration for positions in accordance with their relative length of service ....
Form 1
Page 5
Employes included within the scope of this Agreement - in the Maintenance of Way and Structures Department . . . 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 . . . .
. . . In the event the Company plans to contract out work . . . 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 ....
Form 1 Award No. 40507
The Carrier asserts that the Organization failed to meet its burden of proving that contracting out the work at issue violated Rules 1, 2, 5, 55, the Note to Rule 55, Appendix Y or any other portion of the Agreement.
The Carrier disputes the allegation that it failed to provide appropriate advance notice by tendering as evidence its letter identifying the work to be contracted out and the reasons for doing so. The Carrier states that the Organization's Submission provides no evidence showing that the dirt work at issue here had historically, traditionally and customarily been assigned to Carrier forces to the exclusion of contractors, or that this work is within the Agreement's Scope Rule. If an affirmative defense is required, the Carrier asserts that it is not required to piecemeal the work, that is, to give some to Organization-represented employees and to contract out the other.
In denying that Rule 1 reserves the disputed work to BMWE-represented employees, the Carrier argues that Rule 1 is a general Scope Rule and does not delineate any particular tasks that the Carrier is responsible to assign to B&B forces. BNSF asserts that where a general Scope Rule is involved, the Organization must prove an exclusive past practice of assigning dirt work to Carrier forces.
The Carrier argues, contrary to the Organization's position, that even if there were a basis for sustaining a violation of the Agreement, no compensation should be awarded because the Claimants were fully employed and suffered no loss. It asserts that the Organization failed to provide evidence that the Claimants were other than fully employed on April, 21, 22, or 27, 2004. The Carrier contends that, in Rules cases, the Organization has the burden of proof and that in this instance, the Organization failed to meet its burden as to all elements of the claims.
The Carrier cites Third Division Award 25002 for the proposition that where the claimants are fully employed, a monetary remedy is not appropriate:
The Organization admits that the Carrier provided notice of certain contracted work, however, it argues that the letter failed to provide notice that the contractor would use its trucks and employees to haul any materials for track work and that the Carrier specifically reserved track work to BMWE-represented employees. Finally, the Organization argues that the Carrier owes compensation for the Claimants' lost work opportunities.
After reviewing all record evidence the Board concludes that the Scope and Classification Rules are not relevant to either of these claims. The work here does not involve, grading, excavation, culverts, utility lines, asphalt, fencing, bridges, dirt work or stormwater management which the Carrier carefully listed as being contracted out. Instead, the work at issue involves hauling material to build a pad for the construction of switches that were later placed in the track. The Carrier's notice failed to include this work within the types of labor to be performed by the contractor. On the contrary, it specifically designated "the construction, realignment and installation of the track structures associated with this project" as the responsibility of Carrier forces, that is, BMWE-represented employees. The Board concludes that although the Carrier did provide notice regarding a wide variety of work, it did not provide notice for the specific and limited work at issue in these consolidated claims - hauling track material.
The Organization made a prima facie claim that contractors performed the work alleged in Claim 77 but, significantly, it failed to make a prima facie case that the Claimants were not fully employed and that they thus sustained lost work opportunities or monetary damages. As to Claim 78, the Organization failed to make a prima facie case that contractors performed the work alleged, to make a prima facie case that the Claimants were not fully employed and to make a prima facie case that they sustained a lost work opportunity or monetary loss in Claim 78. In the final analysis, the Board reiterates its prior rulings that the burden is on the Organization to prove each element of each claim. Here, it failed to meet its burden as to each claim.
A careful review convinces the Board that the record contains evidence as to Claim 77, but not as to Claim 78, that the Carrier violated the notice provisions of the Agreement. However, because the Organization did not meet its burden regarding lost work or monetary damages as to either claim, no monetary remedy is Form 1 Award No. 40507
appropriate. We reaffirm prior Awards by the Board holding that fully employed Claimants will not be compensated for lost work opportunities.
The Organization proved that the Carrier failed to give the Organization notice of its intent to contract out the work of transporting, installing and removing track and switch panels, which it had conceded would be performed by its forces. However, the Organization failed to prove the amount of work performed by the contractor. Likewise, it failed to prove that the Claimants lost work opportunities. Thus, the Carrier violated its notice obligations and improperly assigned to a contractor work which the Carrier had committed to its own forces. However, no monetary remedy is appropriate. The Organization's claim for such remedy is denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD 40507, DOCKET MW-39401
AWARD 40508, DOCKET MW-39402
AWARD 40510, DOCKET MW-39404
(Referee Vaughn)
One school of thought adhered to by certain railroad industry advocates is that writing dissents is an exercise in futility because they are neither read nor considered by subsequent referees. This Organization does not belong to that school. For, to accept the theory that dissents are meaningless, is to necessarily accept the conclusion that reason does not prevail in railroad industry arbitration. Despite all the faults built into this system, the Organization Member of this Board is not ready to conclude that reason has become meaningless. Therefore, the Organization Member has no alternative but to file this emphatic dissent to the remedy portion of the claim.
In these cases, there can be little question that if the Carrier had not assigned outside contractors to perform the work at issue here, the Claimants would have performed the work. Hence, the inexorable conclusion is that the Claimants were damaged when they lost the opportunity to perform the work and receive the concomitant reparations.
Here, the Majority is attempting to set a new standard to be required of the Organization to obtain a monetary remedy. It is as though the Majority believes that this issue has not been visited by the parties in the past. Quite to the contrary, hence, the Majority was not ploughing virgin soil here. The Majority's findings here ignore the able on-property awards wherein the Board made monetary reparations to fully employed employes employing standards at odds with the standards the Majority is attempting to foist on the Organization in this case. The authority to award a monetary remedy could be found within the awards attached to our submission and to the awards presented to the Board during panel discussion. For instance, we presented recently adopted Awards 37901, 38010, 38011, 38375, 39865 and Award 33 of Public Law Board No. 6204 involving these same parties wherein a monetary remedy was allowed for both a notice violation and a lost work opportunity. In these forums, literally dozens of referees have sustained monetary awards to enforce the integrity of the Agreement, irrespective of a showing of monetary loss. A sample of these awards, beginning with the early days of the NRAB and continuing to the present are as follows:
"X** The only question arises whether Gardner, who did not, in fact, do the work, is nevertheless entitled to be paid therefor, and on an overtime basis of pay, by reason of the claim that, while not exclusively entitled to the work, he would have, under ordinary circumstances, been called on therefor. If we are to allow the claim it must be done on the basis that the Carrier should be penalized for its violation of the Agreement, regardless of the fact that the result thereof would operate to compensate Gardner for work he did not perform, and on an overtime basis of pay. To impose this penalty may, in the circumstances, seem harsh; but Agreements are made to be kept and the imposition of penalties to attain that end, and to discourage violations, are justified. As we view the matter, less harm will result to the principles of collective bargaining by imposing the penalty than from ignoring the violation and refusing to impose the penalty. ***" (Underscoring added)
"Carrier urges that the claim is for a penalty because Claimant actually worked on each of the days for which the claim is bled; that he received eight ($) hours of pay at his rate for each of the days; that he could not have been available for the work done on those days by the Machine Operators; that the Agreement does not provide for payment of services not performed; that this Division has no right to assess a penalty.
A collective bargaining agreement is a joint undertaking of the parties with duties and responsibilities mutually assumed. Where one of the parties violates that Agreement a remedy necessarily must follow. To find that Carrier violated the Agreement and assess no penalty for that violation is an invitation to the Carrier to continue to refuse to observe its obligations. If Carrier's position is sustained it could continue to violate the Scope Rule and Article I of the Agreement with impunity as long as no signal employes were on furlough and all of them were actually at work. For economic or other Labor Member's Concurrence and Dissent
It appears that the Neutral member has accepted and grounded his opinion upon the Carrier's assertion that the Claimants were "fully employed". The fact that the Claimants may have been working on the claim dates is irrelevant under both the "damages" and "penalty" principles espoused by this Board. It is axiomatic that the employment status of the Claimants is meaningless under the penalty awards because they allow compensation to protect the sanctity of the Agreement irrespective of monetary losses by individual Claimants. The fact that the Claimants may have been working on the claim dates is also irrelevant under the damages awards because they are founded on a loss of work opportunity. The forty (40) hour work week provided for in the National Agreements establishes a minimum of forty (40) hours per week as long as positions exist. The fact that Claimants may have received that minimum payment during a claim period does not negate the fact that they lost the opportunity to perform the work in dispute during daily or weekend overtime or by having an extended work season for seasonal employes. The fact is, that the collective bargaining agreement specifically contemplates such work as is evidenced by the overtime rules, call rules and provisions governing work on holidays or during vacation periods. In recognition of these opportunities for extended hours or additional days of work, numerous awards have held that the so-called "full employment" of claimants is no bar to the awarding of monetary damages. Labor Member's Concurrence and Dissent
The above-cited awards clearly establish that so-called "full employment" is not a bar to finding and awarding monetary damages. Moreover, these same awards also establish that when work is improperly assillned to an outside contractor or even other employes who have no contract right to the work, this establishes a prima facie case for the Organization and the burden shifts to the Carrier to prove that the Claimants would have been unable to perform the work through the use of overtime, rescheduling, etc. In the instant case, no such showing was made or even attempted by the Carrier because no such showing was possible. The inescapable fact is that the Claimants had hauled ballast, installed ties, track and switch panels on the property for decades and there is no reason they could not have performed the work at issue here on the claim dates. Hence, the Claimants suffered a loss of work opportunity.
It is transparently clear that arbitral precedent does not prohibit the sustaining of the monetary award in this claim. In fact, precisely the opposite is true. There is ample precedent to mandate a sustaining award on this property. The Referee's finding that he somehow lacked authority or jurisdiction to sustain the monetary claim is without credible support. Instead, the Referee was dispensing his own brand of industrial justice based on his subjective notion of equity.
For all of these reasons, I emphatically dissent with respect to the damages finding in these award.
