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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimants held seniority in various classes within the Maintenance of Way and Structures Department in the Track Sub-department and the Work Equipment Sub-department on District 200 during the claim period. On the dates involved here, the Claimants were either regularly assigned and working their respective positions on the Clearmont Section or the Sheridan Maintenance crew or were furloughed.
On July 1, 2001, a new Wyoming statute became effective authorizing fines up to $750.00 for each day railroads failed to construct and maintain fences on both sides of their rights-of-way as well as cattle guards at crossings. In an August 20, 2001 letter, the Carrier notified the Organization it intended: Form 1 Award No. 40516
The notice stated the Carrier would contract out work no later than September 5, 2001. As the law required, the Carrier submitted a plan for the completion of the work, which the State approved in September 2001.
The Organization filed a claim protesting the Carrier's use of the contractor to perform the work as well as the lack of proper notice. The parties conferenced the claim on September 20, 2001, but without resolution.
The scope of work involved 68 miles of right-of-way, was substantial and time was of the essence. Work on the project began on November 15, 2001 and continued through January 6, 2002. The Carrier's professed goal was to avoid government sanctions and problems with landowners. The Carrier used the contractor to perform the work. The Claimants were qualified to perform this fence work. The Carrier also used its own employees to perform the work.
All craft employees regularly assigned remained fully employed throughout the period the contractor worked. Insofar as the record indicates, employees on furlough were not recalled during the period.
The Organization submitted evidence including dozens of written statements documenting that Carrier employees had performed fence work in the past decades. One example was a letter dated January 15, 198'1 from Leonard Hoffer which stated in part:
Carrier evidence included statements from Roadmasters attesting to a history of landowners constructing their own fencing, as well as recollections of using contractors to construct fences. One such letter from Roadmaster Raymond Brennan stated in part:
Although the Organization made specific and detailed claims for hours worked by the contractor, no documentary evidence was produced for the record to support the requests for pay. The Carrier rejected the claim for straight time and over-time pay as excessive. It stated that the Claimants were fully employed or furloughed on the days at issue and lost no earnings for those days. The Organization did not dispute this characterization of the Claimants' work status. Form 1 Award No. 40516
The Organization argues that it met its burden of proof to show that the Carrier violated Rules 1, 2, 5, 55, the Note to Rule 55 and Appendix Y.
The Organization acknowledges that the Carrier provided correspondence regarding contracting fence work; however, it argues that this was inadequate as a notice because the Carrier was proceeding with its intended contracting, no matter what; and neither its plan nor the conference included a good-faith effort to reduce the incidence of subcontracting or to increase the use of its forces to the extent practicable as required by Rule 55 and Appendix Y.
The Organization cites the following language in Third Division Award 32862 in which the Board concluded that lack of notice as to intended contracting was a violation of the Agreement:
The Organization further contends that the work at issue 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 calls the Board's attention to the dozens of letters from current and former Carrier employees stating that they performed fence work in numerous locations in multiple years.
The Organization points out that the Claimants hold seniority on the territory where the contractor performed the work in question, were available and qualified to perform the work and would have done so had the Carrier assigned them. The Organization argues that the Carrier therefore owes compensation for the Claimants' lost work opportunities, irrespective of their fully employed status.
The Organization further contends that the burden of establishing an exception to the Scope Rule rested with the Carrier and that it failed to provide probative evidence to establish lack of sufficient forces, lack of skills, existence of an emergency or any other exception.
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 provision of the Agreement. It points out that a timely notice was sent to the Organization in its August 20, 2001 letter identifying the work to be contracted along with the reasons for doing so. It maintains that the parties subsequently engaged in a conference in good-faith. The Carrier points to the Organization's letter to the Carrier dated September 20, 2001 which acknowledges receipt of the notice and confirms the conference, including the names of the participants. Form 1 Page 9
The Carrier states that the Organization alleges, but provides no actual evidence, that the fence work at issue had historically, traditionally, and customarily been assigned to Carrier -forces system-wide to the exclusion of contractors and others, 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. The Carrier asserts that it is not required to piecemeal the work. Nevertheless, the Carrier states that it did just that.
In denying that Rule 1 reserves the disputed work to BMWE-represented forces, the Carrier argues that the Rule is a general Scope Rule and does not delineate any particular tasks the Carrier is required to assign to BMWErepresented employees. The Carrier contends that in light of the general nature of the Rule, it is 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 providing evidence of a system-wide exclusive practice or proving that Carrier employees have a contractual right to performance of the work in question.
As an affirmative defense, the Carrier argues that the change in law constituted an "emergency" which justified using a mixed force of contractors and Carrier employees to accomplish the mandated work. It points out that the scope of work was substantial, that it involved 68 miles of right-of-way and that, due to potential penalties, time was of the essence. It alleges that its local workforce available in the two affected districts was insufficient in number of employees for the task and that this was undisputed by the Organization.
issue and contends that, it is at best, a mixed practice. It points out that it submitted statements from Roadmasters attesting to a history of landowners constructing their own fencing as well the Roadmasters' recollections of using contractors to construct fences.
The Carrier argues that the numerous written statements from employees submitted by the Organization's members merely state that they worked on fences - not that they had historically performed this work to the exclusion of all others on a Form 1 Award No. 40516
system-wide basis. It relies on the following language from on-property Third Division Award 33938 which analyzes the Note to Rule 55:
The Carrier argues that the Organization violated the Agreement by listing fence construction claims it had previously filed and that the parties had settled without either party admitting an Agreement violation. It contends that many such claims were settled through payment by the Carrier on a non-referable basis, that is after signing a document promising non-disclosure of the settlements' terms. It calls the Board's attention to the Organization's January 16, 2006 letter in which the General Chairman states:
The Carrier argues that there is no authorization in the Agreement to support the Organization's request that damages be awarded where there is no proof of actual financial harm to the Claimants.
The Carrier points to statements of its Officers in the record that the Carrier contracted fence work in the past. It argues that the Organization's multiple statements are self-serving and not sufficient to prove no fence work was contracted system-wide. It cites the following language in Public Law Board No. 4768, Award 32:
Form 1 Award No. 40516The Carrier argued that its refusal to draw upon employees from other seniority districts and to move them to the districts at issue did not indicate bad faith on the Carrier's part. It asserts that the request to bring employees across seniority districts was a tacit admission by the Organization of the insufficient number of Carrier employees in the two districts to perform Fence Work.
In response to the Organization's allegation that Classification of Work Rule 55 reserves the work in question to the Claimants, the Carrier argues that it has been 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 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 on the relevant dates and that the Organization provided no evidence that the Claimants were other than fully employed or suffered an actual monetary loss on the dates at issue.
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 Organization argued that the Claimants were `qualified and available;' however, the record demonstrates that those Claimants who were available were fully employed throughout the claim period. Therefore, the Claimants were not available to operate the necessary equipment, rented or otherwise. And because of this full employment, the Carrier was `. . .not adequately equipped to handle the work. . .' as clearly set forth in the second paragraph of the Note to Rule 55."
As the Carrier correctly argued, past Awards have established that the Scope Rule is a general Rule and that Classification Rules are not Scope Rules and, therefore, do not guarantee work assignments. The Board finds no evidence of record that Carrier employees performed fencing work system-wide to the exclusion of others, which is a necessary element for considering the application of the Note to Rule 55. Because that element is not present here, the Note to Rule 55 does not apply.
The Board notes the Carrier's use of craft employees in addition to contractors, insofar as they were available, in order to decrease contractor use. The record contains no proof that additional BMWE-represented employees were available within the relevant seniority districts to perform fence work in the timeframe allocated for the project.
The Board further concludes that the Organization failed to prove that the Claimants sustained lost work opportunities or monetary loss. The Board reiterates its prior rulings that the burden to prove each element of its claim initially rests with the Organization. Here, it failed to meet that burden. Evidence in the record does not support a violation of the Agreement. In view of the above, the Board need
not reach the Carrier's allegations that the Organization improperly referred to claims previously settled between the parties on a non-referable basis.
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-395_31
(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 44517 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 light 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
Third Division Award No. 27012 (Marx) states as follows:
The Board finds that the Carrier's insistence on an exclusivity test is not will founded. Such may be the critical point in other disputes, such as determining which class or craft of the Carrier's employees may be entitled to perform certain work. Here, however, a different test is applied. The Carrier is obliged to make notification where work to be contract out is `within the scope' of the Organization's Agreement. There is no serious contention that brush cutting work is not properly performed by Maintenance of Way employes, even if not at all locations or to the exclusion of other employees ....
Therefore, we find that the Organization need not demonstrate exclusivity to prevail under the Note to Rule 55 and the December 11, 1981 letter. The exclusivity principle is for analysis of disputes determining which class or craft of the Carrier's employees are entitled to perform work and is not relevant to contracting out disputes. The Organization must, however, demonstrate that the employees have `customarily performed' the work at issue. Given the descriptions of undercutting work found in the Agreement and further given the statements of the employees submitted by the Organization showing the extent of that work previously performed, we find 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, Benn, Kenis, Zusman, Suntrup and Brown) have carefully analyzed the Note to Rule 55 and Appendix V and repeatedly held that the so-called exclusivity test does not apply to contracting out cases on this property. See Award t 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 (Kenis - 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.
