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.
Upon request of the Organization, a conference was held on January 18, 2008, but the parties were unable to resolve the Organization's objections to the Carrier's stated intent to contract the work. The subcontracted work commenced in August 2008. This claim followed.
Prior Awards on the property have permitted the Carrier to subcontract this type of work. See Third Division Award 37490 (mowing weeds, tree cutting, brush cutting and related general clean up work). See also, Public Law Board No. 6205, Award 8 (although sustaining the claim for failure to conference under Rule 52 within the 15-day time period prior to beginning the work, nevertheless holding that Form 1 Award No. 40756
". . . we find that Carrier sustained its burden of establishing a mixed practice on this property of renting equipment and manpower to perform weed, grass and brush cutting related work. . ."); as well as Public Law Board No. 7100, Award 12 (". . . Carrier has successfully established a `mixed practice' of using contractors and employees covered by the Agreement to perform the work in dispute [controlling vegetation]").
Based on other Awards between the parties, the type of notice given by the Carrier in this case, albeit blanket, has not been shown to violate the notice requirements of Rule 52. See Public Law Board No. 7100, Award 12, supra (notice provided "Place: At various locations on the North Platte Service Unit. Specific Work: Providing fully operated, fueled and maintained tractors, mowers and other equipment necessary to control vegetation. Commencing January 3, 2005 to December 31, 2005"). See also, Award 37490, supra ("On October 15, 1998, the Carrier issued notice of its intention to hire a contractor to `cut brush' as needed in the State of Idaho . . . The General Chairman protested the notice because its `blanket' nature lacked meaningful details about the planned work."). Further see, Public Law Board No. 7096, Award 3 between the parties (with this Referee) where five-year contracting arrangements did not require periodic renewed notices to be issued by the Carrier, because prior to entering into the long term arrangements, the Carrier met with the Organization and explained why it was utilizing such a lengthy commitment:
notice on the front end (". . . the Company . . . shall notify the General Chairman . . . 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 . . .") and not on the back end (i.e., duration).
The above cited Awards are not palpably erroneous and for purposes of stability must be followed.
Public Law Board No. 7096, Award 15 between the parties does not require a different result. In that case, on September 25, 1999, and referencing "Service Order 16030," the Carrier notified the Organization that:
The facts in Public Law Board No. 7096, Award 15 further showed that by letter dated April 17, 2000, the Organization responded to the notice from the Carrier, asserting that those notices were improper under Rule 52, stating, in part, that "[blanket notices such as this do not meet the Carrier's obligations as required by our Agreement . . . ." The work in dispute in that case commenced on July 31, 2002. The Board sustained the claim for lack of appropriate notice under Rule 52:
The Board in that case noted the distinction between the multi-year arrangements found covered by the initial notices in Public Law Board No. 7096, Awards 3, 5, 9 and 13 and also noted that internal Carrier documents did not show the Carrier notified the Organization of its intent to contract for the specific service order (Service Order 16030):
Here, this is not a completely open ended notice - its duration is for 15 days after January 10 and through December 31, 2008. Further, the work in this case was performed in August 2008 - well within the specified notice period - and not some two years and three months after the notices erroneously relied upon by the Carrier were sent in Public Law Board No. 7096, Award 15. Moreover, and similar to the denial Awards in Public Law Board No. 7096, Awards 3, 5, 9 and 13, there was notice to the Organization (January 10, 2008) and conference was held (January 18, 2008). The facts in Public Law Board No. 7096, Award 15 did not demonstrate those factors present in this case.
Finally, the Organization's reliance upon this Referee's decision in Third Division Award 35530 on a different carrier does not change the result. In that case, a sustaining Award issued where ". . . without prior notice to the BMWE, the Carrier contracted brush cutting on various dates at locations set forth in the claim." Again, notice was given in this case and conference was held. Consequently, the instant claim must be denied. Form 1 Award No. 40756
LABOR MEMBER'S DISSENT
TO
AWARD 40756. DOCKET MW-41234,, AWARD 40758. DOCKET MW-41236
AWARD 40759. DOCKET MW-41238. AWARD 40760. DOCKET MW-41240
AWARD 40761. DOCKET MW-41266. AWARD 40762. DOCKET MW-41269
(Referee Benn)
It is transparently clear that the decision of the Majority in Award 40756 was based entirely on prior awards without any regard for the fact that the evidence and argument in the instant case was substantially different than the evidence and argument advanced in the cases decided by those prior awards. Indeed, the Majority immediately launched into a discussion of "Prior Awards on this property", without any mention, much less a discussion and analysis of the argument and evidence in this case. This may have been convenient and expedient, but it was inconsistent with the Board's obligation to consider the evidence and argument in each case.
The value of treating like cases alike is well established. However, it is equally well established that arbitration awards are not binding in subsequent cases. Rather, prior awards may provide guidance, but they must be examined not only to determine if their reasoning is sound, but also to determine if they truly involve like cases with similar facts, evidence and argument. Simply put, neither labor arbitrators in general, nor the NRAB in particular, follow the principle of issue preclusion. Indeed, no less an authority than the United States Court of Appeals for the Seventh Circuit has ruled that the principle of issue preclusion does not apply at the NRAB but, rather, each side is permitted to try again with better arguments and evidence:
RULE 52(B) AND
"MIXED PRACTICE"
The Majority relied heavily on the findings in prior awards that the Carrier had established a "mixed practice" of using contractors and employes covered by the Agreement to perform the work of mowing and cleaning the right of way and, therefore, the Carrier was permitted to contract out this work pursuant to Rule 52(b). But what the Majority failed to do was even consider, much less discuss and analyze, the Organization's evidence and argument which proved that the Carrier's so-called "mixed practice" argument was not only irrelevant under the terms of the Agreement, but factually wrong.
While no one disputes that Rule 52(b) preserves prior and existing practices,'-` it also expressly preserves prior and existing ri h s and the Organization has conclusive)
established that it had prior and existing contract rights to perform mowing and right-o_ way cleaning work pursuant to the clear and unambiguous language of Rule 9 and its predecessors. Although past practice may be used to fill in gaps in contract language, it can not be used to contravene the clear prior and existing rights that reside in Rule 9 (as well as Rule 8) and were expressly preserved in Rule 52(b). In short, the Organization has developed new argument and documentary evidence concerning the meaning and relationship of the plain language in Rules 9 and 52u that renders the past practice asserted by the Carrier in this case to be completely irrelevant. The Majority's failure to even consider that argument and evidence resulted m an award that is palpably erroneous and should not be afforded any deference by future Referees.
Assuming that past practice was relevant despite the express reservation of work in Rule 9 (which it is not), the Carrier would have been obligated not simply to assert a past practice, but to present probative evidence that such a practice existed at the time Rule 52(b) was negotiated. Moreover, the Carrier would have been obligated to prove that the practice occurred for reasons other than the exceptions permitted by the Agreement and that it had all the requisite elements of a binding practice (i.e., that the practice was clear, long standing, repeated consistently and known at all requisite levels of the Organization). It simply did not do so in this case.
'-' Although there can be no dispute that Rule 52(b) preserves prior practices, there is a considerable dispute over precisely what practices were preserved and what constitutes evidence of such a practice. Glossing over this important contract term with the phrase "mixed practice" is not sufficient to prove the elements of a binding practice.
The documentary evidence that Rules 8, 9 and 52 mean precisely what the Organization says they mean consists of both written admissions against interest by the Carrier and the documented bargaining history of these rules. See Third Division Awards 14061 (1965), 28817 (1991), 29916 (1993), the Fishgold Award (2003) and the Newman Award (2006). In particular, see the Fishgold Award at Pages 7-10 and 14, and the Newman Award at Pages 29-31. The Fishgold and Newman Awards arose in the context of threatened strikes and related litigation and were "party pay"arbitrations where the parties, in the words of the 7~' Circuit "must assemble all of their evidence and make their best arguments in a single forum" and those awards fully support the Organization's position on the meaning of Rules 8, 9 and 52. Labor Member's Dissent to Awards 40756, 40758, 40759, 40760, 40761 and 40762 Page Three
Finally, it is important to recognize that the Majority's unfounded assertions concerning a purported "mixed practice" are really nothing but another way of asserting the UP's own forces have not performed mowing and right-of-way cleaning work to the exclusion of all others. However, as the Majority should certainly know, it is now well established by literally dozens of awards, including awards on this property, that the socalled exclusivity test applies only to jurisdictional disputes between different classes or crafts of a carrier's own employes and does not apply to contracting out disputes. See on property Award No. 14 of PLB No. 7099 and Newman Award at Pages 31 and 35.
The logic for rejecting the application of the "exclusivity" or "mixed practice" test to contracting out disputes on this property is particularly compelling in light of the fact that the parties themselves expressly stipulated that Rule 52(a) applies to work "customarily" performed by employes covered by the Agreement. A school boy knows that "customarily" does not mean "exclusively". Moreover, applying the so-called exclusivity test to contracting out disputes is not only contrary to the black letter of Rule 52(a), 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, Rule 52(a) does not contemplate (and BMWE does not claim) an exclusive reservation of work as against contractors.
Instead, Rule 52(a) provides that work customarily performed by Scope covered employes may be contracted for the reasons expressly set forth in the rule (e.g., special skills, special equipment, special material and emergency time requirements). In light of these exceptions, it's 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 or "mixed practice" test as the seminal test for the application of Rule 52(a) destroys Rule 52. Indeed, applying the exclusivity or "mixed practice" 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.
Just as the Majority began its discussion of work reservation by alluding to "Prior Awards on the property", it launched its discussion of the notice, Based on other Awards between the parties" without any reference to the evidence and argument advanced in this particular case. Moreover, both the prior awards on which the Majority relied and the Majority's decision in Award 40756 are bereft of any reason or rationale for finding the blanket notice sufficient to meet the Carrier's contractual obligations under Rule 52(a). Indeed, there is no explanation at all as to how the blanket notice could possibly be in compliance with either the black letter or the spirit of Rule 52(a) and the related December 11, 1981 Letter of Agreement. Nor was there any attempt by the Majority to distinguish the notice awards on which it relied from the many more fully reasoned awards which have found blanket notice insufficient to meet advance notice obligations, including carefully reasoned awards on this property.
The notice and good-faith meeting obligations in Rule 52(a) are simply the local codification of the notice and good-faith meeting obligations negotiated nationally in Article IV of the 1968 National Agreement. Since the inception of this language in 1968, Labor Member's Dissent to
arbitrators have repeatedly looked to the clear language which required notice and discussion of a specific "contracting transaction" and held that blanket notices were inconsistent with this clear language. See Award No. 7 of PLB No. 2529 and Third Division Awards 25103, 25141 and 25667. There is absolutely no reason why this same national language should be interpreted differently on UP than on every other railroad in the nation. And, those arbitrators who have carefully examined the clear language in Rule 52(a) have similarly condemned blanket and pro forma notices on this property. See Third Division Award 29121 and Award No. 14 of PLB No. 7099 which, unlike the notice awards relied upon by the Majority in this case, carefully explain their rationale based on the clear language of Rule 52(a) and the December 11, 1981 Letter of Agreement. Indeed, Award No. 14 of PLB No. 7099 rejected a blanket notice that was conceptually identical to the notice involved in Award 40756 when it held:
Rule 52(a) permits contracting out of work customarily performed by Maintenance of Way employes where the work involves special skills, special equipment, special material or emergency time requirements. In this case, Union Pacific did not assert the application of any of the criteria expressed in Rule 52(a) which permit contracting. Indeed, Union Pacific could not identify any of these criteria as being applicable in the instant case because Union Pacific did not identify any specific vegetation control work that it intended to contract out. Rather, in the purported Rule 52(a) notice dated January 10, 2008, Union Pacific simply notified BMWE that it intended to contract out unspecified vegetation control work using unspecified equipment and materials at unspecified locations somewhere on the Union Pacific system on unspecified dates during the calendar year 2008. Consequently, the blanket January 10, 2008 notice was clearly at odds with the fundamental purpose of Rule 52(a) which is to provide for good-faith discussions concerning the exception criteria set forth in the rule to a specific "contracting transaction". These discussions simply can not occur in the absence of Union Pacific's identification of the particular work and the special skills, special equipment, special material or emergency purportedly associated with that work. Thus, UP's January 10, 2008 notice was not simply at odds with the black letter of Rule 52(a), but undermined the entire intent and spirit of the rule.
No less an authority than the United States Court of Appeals for the Seventh Circuit has recognized that the principle of issue preclusion does not apply at the NRAB but, rather, each side is permitted to try main with better arguments and evidence. The Majority erred in Award 40756 by blindly ollowing prior awards on the work reservation and notice issue even though the evidence and argument in this case were substantially different than the evidence and arguments in the cases decided by those awards. Future Referees should not compound this error by blindly following Award 40756 without carefully analyzing the evidence and arguments in the cases that are before them.
The findings in Award 40756 were applied in Awards 40758, 40759, 40760, 40761 and 40762, so this dissent applies with equal force and effect to those awards.