The Third Division consisted of the regular members and in addition Referee M. David Vaughn when award was rendered.
Maintenance of Way forces as required by Rule 55 and Appendix Y.
As a consequence of the violations referred to in Parts (2) and/or (3) above, Claimant R. Frerking shall now be compensated for eight (8) hours at his respective straight time rate of pay and three (3) hours at his respective time and one-half rate of pay, Claimant J. Wilkinson shall now be compensated for sixteen (16) hours at his respective straight time rate of pay and twelve (12) hours at his respective time and one-half rate of pay and Claimant S. Thomas shall now be compensated for eight (8) hours at his respective straight time rate of pay."
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 and in its Work Equipment Sub-Department in accordance with Rule Form 1 Award No. 40510
2. Claimants Ficke, Portenier and Hetherington were Group 2 Truck Drivers and Claimants Frerking, Wilkinson and Thomas were Group 2 Machine Operators. The Claimants were fully employed or on vacation on the dates stated in the two consolidated claims.
In a February 27, 2004 letter, the Carrier notified the Organization that it would begin a large construction and reconfiguration project at its Lincoln, Nebraska, Yard. The notice stated 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 stated that the contractor would provide heavy equipment such as side booms and cranes to assist Carrier forces.
The Carrier described the work to be contracted as consistent with its historical practice of contracting out such work. After detailing activities to be contracted, the notice also 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." The parties discussed the notice in conference but without resolution.
Work on the project began on April 6, 2004. On May 11, 12, 13, 15, 17, 19, 20 and 21, 2004, the contractor's forces hauled track panels, switch panels, rail and concrete ties. On May 18, 24, 26, June 1 and 25, 2004, the contractor's forces used trucks and/or rubber tired front end loaders to haul track panels and remove and install switches.
Documentary evidence submitted by the Organization consisted of a brochure indicating that Hertz Equipment Rental in Omaha, Nebraska, rented front end loaders. The Organization provided no affidavit, statement, or other evidence to prove what each Claimant's 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. Form 1 Award No. 40510
Documentary evidence submitted by the Carrier consisted of a computer printout establishing that Claimant Wilkinson was on vacation on the dates of his claim - May 24 and 26, 2004. To confirm its reasons for contracting the work at issue, the Carrier submitted as evidence a copy of Assistant Roadmaster J. M. Chapple's email statement that:
The Carrier rejected the claim for straight time and over-time pay as excessive. It stated the Claimants were fully employed or unavailable due to vacation and lost no earnings.
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 . . . . [T]he advance notices shall identify the work to be contracted and the reasons therefore."
The Organization filed claims, which were subsequently consolidated, protesting the Carrier's use of a contractor to perform track work. The Organization claimed that the Claimants were qualified to perform this hauling, removal and/or installation work. It alleged, but provided no evidence that the contractor's forces expended a total of 99.6 straight time hours and 9.6 time and one-half hours during the claim period - May 11, 12, 13, 15, 17, 19, 20 [the "First claim"]. The Organization alleged, but provided no evidence that the contractor's forces expended a total of 32 straight time hours and 15 time and one-half hours during the claim period May 18, 24, 26, June 1 and 25, 2004 [the "Second claim"].
The first claim was dated June 2 and was received by the Carrier on June 7. The earliest date of work in this claim - May 11, 2004 - was less than 60 days prior to June 7, 2004 as Rule 42A requires for a timely filing. The second claim was dated July 5, 2004 and was received by the Carrier on July 12, 2004. The earliest date of Form 1 Award No. 40510
work in this claim - May 18, 2004 - was less than 60 days prior to July 12, 2004, as Rule 42A requires for a timely filing. The claims were properly handled by the Organization and progressed on the property in the usual manner up to and including the Carrier's highest appellate officer but without resolution. The Organization consolidated the claims and presented them to the Board for arbitration.
The Carrier initially argues that Rule 42A time barred the claims because each was received more than 60 days after the April 6, 2004 date on which the overall project first began. The Carrier disputes the claims' assumptions that the First day of hauling work - May 11, 2004 and the first day of front end loader work - May 18, 2004 - are the dates of first occurrence, respectively, for purposes of filing the two claims pursuant to Rule 42A. It contends that the first occurrence date for each claim was April 6, 2004.
As to substantive issues, the Carrier asserts the Organization failed to meet its burden of proving that contracting the work at issue violated Rules 1, 2, 5, 55, the Note to Rule 55, Appendix Y or any other provision of the Agreement. It argues 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 the good-faith conference required.
The Carrier disputes the allegation that it failed to provide appropriate advance notice. It points as evidence to its letter identifying work to be contracted out and the reasons for doing so. It argues that the Organization's Submission only alleges, but provides no evidence, that the work of hauling tracks and switches and removing and installing switches 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 claims. 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 M of W 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. Consequently, it asserts that no general Scope Rule is applicable to this situation; however, where a Form 1 Award No. 40510
general Scope Rule is involved, 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 meet its burden of producing probative evidence showing a system-wide exclusive practice or showing that the Carrier's M of W employees have a contractual right to performance of the work in question.
In response to the Organization's allegation that Classification of Work Rule 55 reserves the work at issue to the Claimants, the Carrier argues that it has been well established through arbitration that Classification Rules are not Scope Rules and, therefore, do not guarantee any particular work assignment to Carrier employees. The Carrier cites the Board's language in on-property Public Law Board No. 4104, Award 13:
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 Claimant Wilkinson was on vacation and the other Claimants were fully employed on the relevant claim dates. It asserts that the Organization provided no evidence that the Claimants were other than fully employed or suffered a monetary loss. The Carrier contends that in rules cases, the burden of proof rests with the Organization as to all elements of its claims and that in this instance, it failed to meet that burden. The Carrier cites the following language in Third Division Award 25002:
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 haul tracks and switches and remove and install switches. The Organization 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 scopecovered work to an outside contractor violated the Agreement.
The Organization further contends that the burden of establishing an exception to the Scope Rule is the Carrier's 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 irrespective of their fully employed or vacation status.
The Board reaches the following conclusions. Work on the project began on April 6, 2004, however, the events on which the first and second claims were based occurred on or after May 11 and May 18, 2004 respectively. The claims were received by the Carrier on June 7 and July 12, 2004 respectively. Pursuant to the requirements of Rule 42A, all occurrence dates are within 60 days of the Carrier's receipt of the claims. Consequently, the Board finds both claims to have been timely filed.
As to the issue of notice, the Board concludes that 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 is track work. The Carrier's notice failed Form I Award No. 40510
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 Carrier forces, that is, M of W employees. The Board concludes that although the Carrier did provide notice regarding a wide variety of work and did conference the issues with the Organization, it did not provide a notice for the specific and limited work at issue in these consolidated claims - hauling and installing track and switches and removing track and switches. That failure was in violation of the notice requirements of the Agreement.
As the Carrier correctly argued, past Awards including the holdings cited above, establish that the Scope Rule contained in the Agreement is a general Rule and that Classification Rules are not Scope Rules and, therefore, do not guarantee work assignments. That having been said, the evidence is that the Carrier in its notice to the Organization, specifically reserved track work on the project to Carrier forces: "Carrier forces will be responsible for the construction, realignment and installation of the track structures associated with this project." It is unclear whether the commitment is based on the Scope Rule or the practice on the property; however, the Carrier's concession was clear. The Carrier admitted that it contracted out track work on the project. The Carrier conceded its violation.
The violation having been established, it became the Organization's burden to establish the appropriate remedy. The Organization failed the initial task of submitting probative evidence as to the number of hours the contractor spent performing the work alleged or to prove that the Claimants lost any work opportunities or otherwise suffered monetary loss. The Organization failed to meet its burden to justify any monetary remedy.
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 own forces. However, the Organization failed to prove the amount of work performed by the contractor or that the Claimants 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 the Carrier committed to its own forces. However, no monetary remedy is appropriate. Form 1 Award No. 40510
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 an 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
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.
