The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.
The pertinent facts are effectively undisputed in the on-property record. The Carrier provided notice by letter dated April 8, 2004, of its intent to hire a contractor to furnish and operate an off-track crane to drive twelve 14-inch by 60foot steel H-pilings for the purpose of constructing four new bridge bents. Pile driving could be done only in five-hour blocks of track time. The closest sidings in either direction from the work site were more than seven miles away. This distance would require approximately one hour to move an on-track crane into position from the siding to begin work and then another hour to move back from the work site into the siding to permit train traffic to resume. The use of an on-track crane would effectively leave only approximately three hours out of each five-hour block of track time to accomplish the pile driving work. Although the Carrier owned on-track cranes that could perform pile driving, all of them were committed to other projects. The Carrier did not own any such off-track cranes. The off-track crane provided by the contractor did not need to be moved for train traffic. It could remain in its off-track position and be useful for the full five-hour block of track time. Two contractor employees worked a total of 340 hours of straight time and 76 hours of overtime during the pile driving. The contractor employees assisted Form 1 Award No. 40799
Carrier forces during the project. The two Claimants involved worked on the same project for the same number of hours as the contractor employees.
The Carrier's notice was duly received and the parties engaged in a conference on April 21, 2004. When no understanding was reached about the project, the Carrier proceeded with the contracting. The work began on May 17 and continued through June 30, 2004.
The instant claim was made by letter dated Thursday, July 15, 2004. It is undisputed that it was placed in the mail and postmarked that same date. It was not received by the Carrier until Tuesday, July 20. This caused the Carrier to declare the claim to be invalid due to lack of timeliness pursuant to Rule 21(A). This procedural objection must be addressed as a threshold matter. The Rule reads, in pertinent part, as follows:
Neither party cited any on-property Awards that have interpreted the meaning of "presented" under their Agreement. The issue, however, has been the subject of a number of prior Awards elsewhere. The weight of authority has interpreted the word to mean that a claim is presented when it is placed in the mail properly addressed to the recipient. See, for example, Third Division Awards 16370, 24440, and 32550.
Interestingly, the Carrier cited a prior Award in support of its position that "presented" means received within the 60-day time limit. However, a careful reading of Third Division Award 14450 appears to undermine the Carrier's position. In that Award, the dispute involved an alleged continuing violation. The offending position assignment began on July 21, 1958. The claim was made by letter dated November 20, 1959, more than one year later. The operative time limit Rule contained the word "presented" in a context identical to the instant Rule 21(A). In Form 1 Page 4
By agreement between the Company and the General Chairman, work as described in the preceding paragraph which is customarily performed by employes described herein, may be let to contractors and be performed by contractor's forces. However, such work may
Company's employes, special equipment not owned by the Company, or special material available only when applied or installed through supplier, are required; or unless work is such that the Company is not adequately equipped to handle the work; or, time requirements must be met which are beyond the capabilities of Company forces to meet.
In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the Brotherhood in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less
Form I Award No. 40799Although the so-called Berge-Hopkins December 11, 1981 Letter of Understanding speaks in general terms, the second paragraph of Scope Rule I(B) recognizes five specific situations in which the Carrier is permitted to contract out work otherwise reserved to scope-covered employees in non-emergency circumstances. One of those exceptions permits the contracting of work when the Carrier does not own specialized equipment. It is undisputed that the Carrier did not own any off-track cranes. Moreover, the Carrier provided evidence in the onproperty record to establish that none of its on-track crane equipment could be used. This evidence was not countered by any contrary evidence from the Organization. Finally, it is effectively undisputed that the pile driving could not be performed practicably without the off-track crane.
To the extent that general terms and specific terms appear to conflict, it is well settled specific provisions prevail over general provisions. Given the state of the record, we must find that a violation of the Agreement has not been proven. The claim, therefore, must be denied. Form I Award No. 40799
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
AWARD 40799. DOCKET MW-3$953
V (Referee Wallin)
In this case, the Majority committed a cardinal sin. It did not simply consider a new argument never advanced during the handling on the property, but instead went one step her and raised a new argument sua sponte. Then, to add insult to injury, the Referee answered the contract interpretation question he posited for the Carrier in a manner that was: (1) in conflict with well-reasoned precedent on this property; (2) in conflict with the Referee's own prior awards; (3) in conflict with the plain language and bargaining history of local Rule 1B and the national December 11, 1981 Berge/Hopkins Letter of Agreement; and (4) in conflict with fundamental logic. The result is an award that is not only at odds with nearly thirty (30) years of local and national precedent, but also without any reasonable foundation. Inasmuch as the precedential value of awards is directly related to the quality of reasoning in the awards, Award 40799 should be treated like the anomalous outlier that it is and afforded no precedential value.
The first and most fundamental problem with this assertion is that the Carrier did not at any time during the handling of this case on the property argue that there was a conflict between Rule 1B of the local agreement and the national December 11, 1981 Berge/Hopkins Letter. The Carrier did raise the argument that the Berge/Hopkins Letter was no longer in effect (a truly Labor Member's Dissent
frivolous argument that has been rejected in dozens of awards), but it never asserted a conflict between the local and national rules and it never, not once, asserted that local Rule 1B was specific while the Berge/Hopkins Letter was general. Instead, the Majority for the first time in the history of the dispute posited a conflict between local Rule I B and the national Berge/Hopkins Letter and then resolved the purported conflict by applying the specific versus general principle, a position never taken by the Carrier during the handling on the property (or even in its submission). Thus, the Majority didn't simply violate the procedural prohibition on the introduction of new issues, it went a step her, a big step, when it acted as an advocate for the Carrier and raised the new issue sua sponte. In addition to the obvious violation of the Board's rules and procedures, this was grossly unfair to the Organization. Indeed, the Organization was unable to respond to this new issue even during oral argument because there was no indication that this issue was being considered until it appeared in Award 40799. Moreover, if the issue had been raised on the property and the Organization had been afforded a fair chance to respond, it would have been able to handily demonstrate that there was no conflict between Rule 1 B in the local agreement and the national Berge/Hopkins Letter, as we shall demonstrate below.
Award 40799 is hardly the first time a Section 3 panel has been required to interpret the relationship of Rule I B in the local C&NW Agreement and the national Berge/Hopkins Letter. To the contrary, in a contracting out dispute that arose in 1984 on the former C&NW property, the Carrier asserted "°... it had the right to subcontract the work in question in accordance with the provisions of Rule 1, as it does not possess the special material and equipment required to perform this work on the scale involved in the instant case." That dispute was submitted to Public Law Board (PLB) 2960 and decided by Award No. 136, which held:
Labor Member's Dissentconflict. Rather, the Board clearly read the special equipment exception in the local rule and the subsequent national rule requiring good-faith efforts to lease equipment to be in perfect harmony. There was no dissent filed in connection with Award 136 of PLB No. 2960.'-j
Three years later in 19$7, another contracting dispute arose on the C&NW property which required the interpretation and application of local Rule 1 B and the national Berge/Hopkins Letter. In that case, the Carrier once again defended its actions by asserting it did not have the necessary equipment as contemplated by Rule I B. In Award 153 of PLB No. 2960, Arbitrator Vernon ruled as follows:
There was no dissent filed to Award No. 153. Therefore, it is crystal clear that at the time the national December 11, 1981 Letter of Agreement was negotiated and integrated in the local
'-j It's worth noting that the Neutral Member of PLB 2960, a long standing C&NWBMWE Board, was Mr. Gil Vernon, a former Carrier Member of the NRAB and current President of the National Academy of Arbitrators. Apparently, Mr. Vernon did not see any conflict in local C&NW Rule I and the national Berge/Hopkins Letter. And, judging from the text of Award 136 and the absence of a dissent, it is clear that the C&NW did not perceive any such conflict either. Labor Member's Dissent
C&NW Agreement, neither the Carrier, the Organization or the Neutral Member of PLB 2960 (the standing Board the parties established to resolve contract interpretation disputes arising under the C&NW Agreement) believed that there was any conflict between the Berge/Hopkins Letter and Rule 1 B. To the contrary, those provisions were read in harmony, with the national rule modifying the local rule just as all national rules modify the local rules on related subjects. Indeed, that is the purpose of national multi-employer bargaining in the railroad industry. Thus, it was nothing short of an egregious error for the Majority in Award 40799 to determine, sua sponte, some twenty-nine (29) years after the fact, that there was a conflict between C&NW local Rule 1 B and the national Berge/Hopkins Letter.
In addition to being in conflict with well-reasoned awards on the C&NW property, the Majority's decision is in conflict with prior awards rendered by this Referee. In Award 35337, this Referee set forth the analytical framework for integrating the national December 11, 1981 Berge/Hopkins Letter and existing local rules which permit contracting out under certain circumstances:
It is transparently clear from Award 35337 that this Referee understood the integration of the national December 11, 19$1 Letter and equipment exception rules in existing local agreements in precisely the same way that Referee Vernon understood them on the C&NW property. That is, this Referee expressly stipulated that the December 11, 1981 Letter of Agreement, "... created new Carrier commitments that limited existing rights, if any, to contract out Scope covered work. ***" (Emphasis in bold added) and that "*** the Letter of Agreement requires the undertaking of good-faith efforts to use Carrier forces and equipment, or rent such equipment, before resorting to previously existing rights to contract out Scope covered work. ***" There was simply no basis for concluding otherwise in Award 40799 and we are simply stunned not only that the Referee did so, but doubly stunned that he did so sua sponte.
CONFLICT WITH
THE CLEAR LANGUAGE
AND BARGAINING
HISTORY
Rule 1B was negotiated by BMWE Vice President O. M. Berge in the local C&NW Agreement effective August 1, 1974. Some seven (7) years later, that same O. M. Berge, who had been elected President of BMWE in the interim, negotiated the December 11, 1981 National Agreement, including the December 11, 1981 Berge/Hopkins Letter. By its plain terms and the fundamental principle of national bargaining, the Berge/Hopkins Letter modified the existing rights to contract in the local rules of all Carriers party to the 1981 National Agreement, just as this Referee correctly explained in Award 35337. The Carriers' obligation to lease equipment, enshrined in the Berge/Hopkins Letter, contains no exception for "special equipment". Consequently, there is no conflict between local Rule 1 B and the Berge/Hopkins Letter that would require resolution by the application of the specific versus general language principle. Indeed, in the twenty-nine (29) year history of the Berge/Hopkins Letter, not a single Carrier in the nation has asserted that there is a conflict between existing rights in local agreements that permit contracting out that requires special equipment and the new restrictions on those rights in the Labor Member's Dissent
Berge/Hopkins Letter. Consequently, there was simply no rational basis for the Majority in Award 40799 to posit such a conflict sua sponte some twenty-nine (29) years after the fact.
CONFLICT WITH
LOGIC AND REASON
There are no agreements that permit contracting simply because the Carrier does not own the equipment routinely used by the BMWE craft. Indeed, such an exception would render the agreement meaningless because the Carrier could eliminate the craft by simply selling its equipment or allowing its inventory to expire through attrition (See Awards 6905, 10229, 19657, 20090 and 20372). Instead, whether by practice or rule, existing local agreements with equipment exceptions permit contracting when the Carrier does not own "special equipment" [e.g. C&NW Rule 1 B, UP Rule 52, BN Rule 55 and Soo Line Rule I (c)]. Consequently, under the Majority's sua sponte theory in Award 40799 that the Berge/Hopkins Letter does not apply when special equipment is involved, the result would be that the obligation to lease equipment set forth in the Berge/Hopkins Letter has virtually no application and is essentially a meaningless clause. That is simply not a logical or reasonable conclusion.
The Majority's finding in Award 40799 is based upon new argument that the Majority injected into this case sua sponte. For that reason alone, Award 40799 should not be afforded any precedential value. But beyond that procedural point, Award 40799 is not simply wrong, but profoundly wrong. It is in conflict with: (1) well reasoned precedent on this property; (2) the Referee's prior awards; (3) the plain language of Rule 1B and the Berge/Hopkins Letter; (4) the fundamental principle of national bargaining; and (5) logic and reason. And, as if that weren't enough, the theory the Majority manufactured from whole cloth (i.e., that there is a conflict between the Berge/Hopkins Letter on the one hand and existing local rules which permit contracting that requires special equipment on the other) is a theory that has never - not once - been advocated by any carrier in the twenty-nine (29) year history of the Berge/Hopkins Letter. For all of these reasons, I vigorously and emphatically dissent.