The Third Division consisted of the regular members and in addition Referee M. David Vaughn 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.
The Claimant held seniority as a Group 2 Machine Operator and was fully employed on May 3, 4, 5, 6, 7, 10, 11, 12 and 13, 2004. No allegations or evidence as to the Claimant's employment status on April 26, 27, 28, 29 and 30 were provided by either party.
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 that the Carrier would 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, sub-grade work, and embankment work. 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 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."
On some dates, the contractor used one of its employees to operate its own back hoe to remove and install switches, ties, ballast and track panels. The Claimant was qualified to do this work, and held appropriate seniority on the days specified. The contractor's employee who allegedly performed this work held no seniority or work Form 1 Award No. 40508
rights under the Agreement. The Organization made allegations, but provided no affidavit, statement, or other evidence (1) to substantiate the work performed by the contractor's employee (2) to indicate that the Claimant was available to work on the days at issue or (3) to support its claim that the work at issue was exclusively reserved system-wide to Carrier forces. The Organization's single piece of evidence was a brochure indicating that Hertz Equipment in Omaha, Nebraska, rented hydraulic excavators.
The Carrier rejected the claims for straight time and over-time pay as excessive. It provided no employment records of the Claimant's hours worked on the days at issue, but did assert that the Claimant was "fully employed" on the days at issue in May 2004 and lost no earnings for those days.
Form 1 Award No. 40508
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.
It disputes the allegation that it failed to provide appropriate advance notice by tendering as evidence its letter identifying work to be contracted and the reasons for doing so. It points out that, as with other claims regarding this same project, after the notice was provided, the parties engaged in a conference.
The Carrier asserts that the Organization's Submission alleges - but provides no evidence - showing that the work at issue is within the coverage of the Scope Rule, or that the work at issue had historically, traditionally and customarily been assigned to Carrier forces system wide to the exclusion of contractors. The Carrier reiterates that it is the Organization's responsibility to provide evidence of probative value to support its claim. 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 the Rule is a general Scope Rule and does not delineate any particular tasks that the Carrier is responsible to assign to M of W forces.
It asserts that the Organization was thereby obligated to prove an exclusive past practice of assigning the track work to Carrier forces.
The Carrier argues, contrary to the Organization's position, that even if there were a basis establishing a violation of the Agreement, no compensation should be awarded because the Claimant was fully employed during the relevant dates in May 2004 and suffered no economic loss as a result of the Carrier's alleged use of a contractor. The Carrier contends that it is not required to recall an employee for less than a 30-day vacancy. It asserts that the Organization failed to provide any evidence that the Claimant was other than fully employed on the dates at issue. The Carrier indicates 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 its claim.
The Carrier cites the following language in Third Division Award 25002 for the proposition that where a Claimant is fully employed, a monetary remedy is not appropriate: Form 1 Award No. 40508
The Organization acknowledges 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 equipment and employee to perform track work, that the work at issue here had historically, traditionally and customarily been assigned to Carrier forces system wide to the exclusion of contractors, and that the Carrier specifically reserved track work to M of W employees. Finally, the Organization argues that the Carrier owes compensation for the Claimant's lost work opportunities.
After reviewing all record evidence the Board concludes that language of the Scope and Classification Rules is not the issue. 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 removal and installation of switches, ties, ballast and track panels - track work. The Carrier's notice failed to include this work within the types of labor to be performed by the Contractor. In fact, it specifically designated "the construction, realignment and installation of the track structures associated with this project" as the responsibility of the Carrier's M of W forces. The Board concludes that although the Carrier did provide notice regarding a wide variety of work, it failed to provide a notice for contracting out the specific work at issue in this claim - track work.
On the other hand, the Organization failed to make a prima facie case that the Contractor performed the work alleged, that the Claimant was not fully employed and that he sustained lost work opportunities or monetary loss. In the final analysis, the Board reiterates its prior rulings that the burden is on the Organization to prove each element of its claim. Here, it failed to meet its burden.
The record contains evidence showing that the Carrier violated the notice provision of the Agreement. However, because the Organization did not meet its burden regarding work performed by the contractor, the Claimant's lost work opportunities or monetary damages, the claim will be denied as without merit. The Form I Award No. 4050&
Board reaffirms 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 conceded would be performed by its forces. However, the Organization failed to prove the amount of work performed by the contractor or to prove that the Claimant lost work opportunities. Thus, the Organization is entitled to a declaration that the Carrier violated its notice obligations and improperly assigned to a contractor work that the Carrier had committed to be performed by 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:
"*** the Board is not receptive to Carrier's argument that the violation was merely de minimis or that Claimants should be denied any recovery because they were otherwise occupied. This Board has held in numerous cases that a remedy ordinarily is appropriate where a violation of an agreement is proven. ***" (Underscoring in original)
"*** By the failure to give the required notice, the Carrier did not give the negotiated procedure set forth in Article IV an opportunity to unfold. Claimants therefore clearly lost a potential work opportunity as a result of the Carrier's failure to follow its contractual mandate to give the Organization timely notice. Given this Board's previous admonitions to the Carrier to comply with the terms of the 1968 National Agreement and the Carrier's failure to do so and further considering that the awarding of monetary relief to employees for violations of contracting out obligations even when the affected employees were employed is not unprecedented (see Third Division Award 24621 and Awards cited therein), on balance, we believe that given the circumstances of this case, such affirmative relief is required in order to remedy the violation of the Agreement. To do otherwise would ultimately render Article IV of the 1968 National Agreement meaningless."
"We regard any improper siphoning off of work from a collective bargaining agreement as an extremely serious contract violation, one that can deprive the agreement of much of its meaning and undermine its provisions. In order to preserve the integrity of the agreement and enforce its provisions, the present claim will be sustained in its entirety. Contrary to Carrier's contentions, we do not find that the absence of a penalty provision or the fact that claimants were employed full time on the five dates in question deprives the Board of jurisdiction to award damages in this situation." 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 assigned 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 trove 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.