The Third Division consisted of the regular members and in addition Referee M. David Vaughn when award was rendered.
Form 1 Award No. 40509The 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.
The Claimants held seniority in the Maintenance of Way and Structures Department in the Truck Driver classification and were fully employed on May 14, 25 and June 2, 2004.
In a February 27, 2004 letter, the Carrier notified the Organization that it would begin a large 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." To assist Carrier forces, the contractor stated that it would provide heavy equipment such as side booms and cranes.
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."
Form 1
Page 3The parties conferenced the claim but without resolution. Work on the entire project began on April 6, 2004. On May 14, 25 and June 2, 2004, the contractor used two of its employees to operate two of its trucks to haul ballast. The Organization's evidence included Claimant Klaus' written statement dated July 18, 2005 that the contractor's employees expended 24 hours each at straight time rates and three hours at time and one-half rates during the claim period. The Claimants were qualified to perform this ballast hauling work.
Equipment Rental in Omaha, Nebraska, rented dump trucks. The Organization provided no affidavit, statement, or other evidence to prove what the Claimants' employment status was on the days at issue or to support its claim that the work was exclusively reserved system-wide to Carrier forces to the exclusion of contractors.
The Carrier confirmed its reasons for contracting the hauling work by submitting as evidence the email statement of Assistant Roadmaster J. M. Chapple that stated:
"This was a very large project involving the replacement of 19 turnouts and extending several miles of track. The MOW's portion of this project started on 04/06/2004 and the project is still underway as of 08!0512004. Several machines and trucks were contracted during this period . . . . The BNSF does 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 BWE labor and machinery as well as contracted services. . . ,"
The Carrier rejected the claim for straight time and over-time pay as excessive. It stated that the Claimants were fully employed on the claim dates and lost no earnings for those days.
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 ....
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 . . . 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.
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 . . . . [The advance notices shall identify the work to be contracted and the reasons therefore."
The Carrier initially argues that Rule 42A time barred the claim because it was received July 12, 2004, more than 60 days after the April 6, 2004 date on which the project first began. The Carrier disputes the claim's assumption that the first day of ballast hauling work - May 14, 2004 - is the first occurrence date for purposes of filing a claim pursuant to Rule 42A.
The Carrier asserts, with respect to the substance of the dispute, that the Organization failed to meet its burden to prove that contracting out the work at Form 1 Award No. 40509
issue violated Rules 1, 2, 5, 55, the Note to Rule 55, Appendix Y or any other portion of the Agreement. It notes that a timely notice was sent to the Organization identifying the work to be contracted along with the reasons for doing so, after which the parties engaged in a conference in good-faith.
The Carrier states that the Organization alleged but provided no evidence that ballast hauling work had historically, traditionally and customarily been assigned to Carrier forces system-wide to the exclusion of contractors, or that this work falls within the parameters of the Scope Rule. The Carrier reiterates that it is the Organization's responsibility to provide probative evidence to support its claim. If an affirmative defense is required, the Carrier asserts that it is not required to piecemeal the work.
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 the Carrier is required to assign to M of W forces. In such instances, it becomes the Organization's burden to prove that past work has been assigned to its members exclusively. The Carrier contends that the Organization failed to satisfy its evidentiary burden to prove a system-wide exclusive practice or that the Carrier's M of W employees have a contractual right to perform the work.
In response to the Organization's allegation that Rule 55, the Classification of Work Rule, reserves the work in question to the Claimants, the Carrier argues that it is well established in arbitration that Classification Rules are not Scope Rules and, therefore, do not guarantee any particular work assignment to Carrier employees. The Carrier cites on-property Public Law Board No. 4104, Award 13, which held:
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 Form I Award No. 40509
awarded because the Claimants were fully employed on the relevant dates and the Organization provided no evidence that the Claimants were other than fully employed or suffered a monetary loss. The Carrier asserts that in Rules cases, the burden rests with the Organization as to all elements of its claim and that in this instance, it failed to meet that burden. The Carrier cites the following language in Third Division Award 25002:
The Carrier also cites on-property Third Division Award 36715 which held the following:
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 employees to perform ballast hauling work. It contends 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 assignment of this scope-covered work to an outside contractor violated the Agreement.
The Organization further contends that the burden of establishing an exception to the Scope Rule rests with the Carrier and that the Claimants were available and fully qualified to perform the work. Finally, the Organization argues that the Carrier owes compensation for the Claimants' lost work opportunities Form 1 Page 8
irrespective of their fully employed status in order to deter the Carrier's future violations.
The Board concludes that work on the project began on April 6, 2004; however the events on which the claim was based occurred on May 14, 25 and June 2, 2004. The claim was received by the Carrier on July 12, 2004. All three dates are within 60 days of the claim's receipt, meeting the requirements of Rule 42A. Consequently, it was timely filed.
The evidence persuades the Board that the Carrier provided the appropriate notice and conferenced the issue. As the Carrier correctly argued, past Awards, including the holdings cited above, have established that the Scope Rule at issue is a general Rule and that Classification Rules are not Scope Rules and, therefore, do not guarantee work assignments. It was the burden of the Organization to prove that Carrier employees customarily performed ballast hauling work system-wide to the exclusion of contractors. The Board determines that this is the necessary element for consideration of the application of the Note to Rule 55. The record contains no evidence to meet the Organization's burden.
minimize the use of contractors. However, there is no proof either that the contractor performed the ballast hauling work at issue or that craft employees were available to perform the work in the timeframe allocated for the project. The Board also concludes that the Organization failed to prove that the Claimants sustained lost work opportunities or monetary loss. The Board confirms prior Awards by the Board holding that fully employed Claimants will not be compensated for lost work opportunities. In the final analysis, the Board reiterates its prior rulings that the burden to prove each element of its claim rests with the Organization. Here, it failed to meet that burden. Evidence in the record does not support a violation of the Agreement. Accordingly, the claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 40509, DOCKET MW-39403
AWARD 40516, DOCKET MW-39530
AWARD 40517, DOCKET MW-39531
(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 40509, 40516 and 40517 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.
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:
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:
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.
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 fight of these exceptions, its 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.
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 20 of Public Law Board (PLB) 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: Labor Member's Dissent
Award 39685 and Award 20 of PLB No. 4402 hardly stand alone. To the contrary, over the last two (2) decades, six (6) different arbitrators (Marx, Beim, 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 1 of PLB No. 4768 (Marx - 1990), Award 21 of PLB No. 4402 (Benn - 1991), Award 25 of PLB No. 4768 (Marx - 1992), Award 61 of PLB No. 4768 (Marx -1995), Award 36015 (Benn - 2002), Award 37901 (Kepis - 2006), Award 38010 (Zusman - 2007) and Award 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 40509, 40516 and 40517 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.
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:
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 (50) 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.
The Neutral Member's application of the exclusivity test to contracting out disputes in Awards 40509, 40516 and 40517 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 40509, 40516 and 40517 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.
