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.
This proceeding involves a claim arising from the Carrier's decision to contract out work for Rockland Siding which the Organization alleges is a violation of Rule 1 and Appendix H. The claim was processed on the property in the usual manner up to and including the Carrier's highest appellate officer. Pending the outcome of this proceeding, the parties agreed to hold another claim (Carrier's File 8-00590 DHR) in abeyance.
Following receipt of the notice, the Organization requested a conference, which convened on July 17, 2007. The Organization sought to increase the use of BMWErepresented forces; the Carrier cited lack of manpower and equipment because its forces were fully employed performing capital and maintenance projects. Project completion by the end of 2007 was required because the Carrier anticipated increased CSXT traffic by that time. The Organization requested copies of documents such as contracts, but none were disclosed during the parties' conference discussions.
On October 1, 2007, the Organization filed this claim for excavating and grading work at Rockland Siding. Aside from reiterating arguments presented during conference, the Organization asserted that the Carrier did not engage in good-faith attempts to reduce the incidence of contracting by refusing to disclose project specifications and not planning for the use of BMWE-represented employees.
On October 31, 2007, the Carrier denied the claim. Aside from reiterating arguments presented during conference, the Carrier asserted that Rule 1 provides for contracting out with a 15-day advance notice and it engaged in good-faith attempts by discussing "any matter brought to the table, including details of the project" while, at the same time, recognizing time constraints for project completion and manpower availability. The Carrier noted that it offered employment to more than 130 applicants in 2006 - 2007.
On December 2$, 2007, the Organization appealed the claim. The Organization states that during the past two years, the Carrier contracted out 11 projects. This is not an indication of good faith because BMWE-represented employees were furloughed in December 2007 while outside forces remained on the property performing BMWE scope-covered work. Lack of manpower (Carrier's assertion) is due to lack of planning and scheduling BMWE-represented employees. Although the Organization recognized the Carrier's attempt to hire additional employees, such efforts fall short and late for maintaining an adequate workforce to handle capital projects, such as Rockland Siding. Form I Award No. 41446
On February 15, 200$, the Carrier denied the appeal. According to the Carrier, the Claimants were not in furloughed status. If other BMWE-represented employees were in furloughed status in December 2007 while contractors remained on the property, then it was an unanticipated situation given the November 2007 timeframe for project completion.
The Carrier asserts that throughout the work season, management personnel decide whether the Carrier has ample time to complete scheduled projects given the available manpower. Construction of a 10,000 foot siding is a major undertaking. Once a project goes to a contractor, it is difficult to infuse Carrier forces every now and then, when they become available. According to the Carrier, there is no contractual requirement for the Carrier to do so.
As for the documents such as contracts requested by the Organization, the Carrier stated that it would release them "in due course."
On June 23, 200$, the parties convened another conference to discuss the Rockland Siding project, but the claim remained unresolved.
As a preliminary matter for the Board's review, the Carrier's Submission includes a request to dismiss the instant claim because the Organization expanded the original claim when it filed its appeal. According to the Carrier, whereas the original claim was for all work performed by the contractor, the Organization failed to identify the work. Moreover, in its appeal, the Organization identifies "new track construction" as the claimed work.
The Carrier's request for dismissal is a matter of procedural jurisdiction and not subject-matter jurisdiction. The Carrier's procedural request for dismissal could have been addressed in its denial of the Organization's appeal. By electing to present its request for dismissal to the Board in its Submission, the Carrier raises new argument, which will not be considered at this late stage of the proceeding. Thus, the Carrier's request to dismiss the claim is rejected.
According to the Organization, the claimed work is within the scope and coverage of Rule 1.1 because it is "work generally recognized as Maintenance of Way work, such as, inspection, construction, repair and maintenance of . . . tracks . . . and Form I Award No. 41446
roadbed[.]" (Emphasis added) The Carrier acknowledges that the claimed work is scope-covered under Rule 1.
Because the claim involves scope-covered work, certain prerequisites must be met by the Carrier under Rule I and Appendix H (December 11, 1981 Letter of Agreement) before the work can be subcontracted. Appendix H created and placed binding commitments on the Carrier that, when not met, limit its right to contract out.
Specifically, the commitment and requirement is a good-faith effort to use BMWE-represented forces and Carrier-owned equipment, or to rent the equipment for use by its employees "to the extent practicable" before the Carrier exercises its right to contract out. When the good-faith effort is not established, the legitimacy of the contracting-out arrangement is undermined resulting in a violation of Rule 1 and Appendix H.
Applying Rule I and Appendix H to the instant claim, the Board must determine whether the notice of intent to contract was timely under Rule 1.3 ("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").
Rule 1.3 is self-evident for the Carrier's obligation to issue advance written notice "prior thereto" - before the "contracting transaction." Along with Rule 1.3 is Appendix H, which states "the advance notice shall identify the work to be contracted and the reasons therefore."
The other prerequisite arises under Rule 1.4 and that is whether there was a good-faith attempt to reduce the incidence of contracting and increase the use of BMWE-represented employees "to the extent practicable, including the procurement of rental equipment and operation thereof" by the Carrier's employees. Good faith does not mandate agreement over claimed work because "if no understanding is reached, the Carrier may nevertheless proceed" to contract out.
Having reviewed the record established by the parties, the Board finds that although the Carrier issued a timely notice of its intent to contract out, the notice does not "identify the . . . reasons" for subcontracting for the construction of Rockland Siding as required by Appendix H. The intent underlying the identification of reasons is "[i]n the interests of improving communications between the parties on subcontracting[.]" The absence of any reasons in the notice violates Appendix H. This Form 1 Award No. 41446
violation, standing alone, is not dispositive of the claim, but when considered in the totality of circumstances, the Board finds the violation is part of a lack of good faith effort.
The totality of circumstances encompasses the consideration whether there were "good-faith efforts to reduce the incidence of contracting and increase use of
BMWE-represented employees "to the extent practicable including the procurement of rental equipment and operation thereof, by carrier employes." A review of the record and the time line of events therein brings clarity to this consideration.
On April $, 2005, the Carrier commenced initial planning or preliminary discussions with contractors. Discussions and planning continued through 2006 and into 2007 including requests for proposals. Documents such as "Supplementary General Conditions" and "Specification" were agreed upon with the contractor on July 6, 2007. On July 17, 2007, the parties' conference convened. The effective date of the contract is August 7, 2007. The outside forces commenced working on the project on August 13, 2007.
From the inception of the notion or plan for Rockland Siding, the Carrier engaged contractors for discussion of scope-covered work. When the Carrier ultimately issued the notice of intent to contract out on June 29, 2007, Rockland Siding `vas a fait accompli for contracting out without regard "to the extent practicable" to increase the use of BMWE-represented employees for this project, including any consideration for procuring rental equipment that they could operate.
Upon receipt of the notice, the Organization (1) requested documents pertaining to Rockland Siding (2) reiterated that request in its claim and (3) repeated the request during conference discussion, as well as in its appeal. The Carrier does not contest the propriety of disclosing the documents but, at all times, replied "in due course," which led to disclosure beyond the period for discussions designed to reduce the incidence of contracting. This unexplained delay is not construed favorably for the Carrier.
When the parties' conference discussions finally convened on July 17, 2007, the Carrier had already executed general conditions and work specifications with the contractor and initialed documents dated July 6, 2007. In other words, the scopecovered work made basis for the contracting transaction was committed to the contractor prior to the parties' conference discussions. The contract's effective date of August 7, 2007, does not diminish the import of these pre-conference commitments. Form I Page 7
Planning and scheduling for the Rockland Siding project occurred over a period of time measured in years - not months. The record is void of any documented demonstration, other than assertion, that available BMWE-represented employees in 2005 remained unavailable at all times thereafter. The Carriers assertion that it decided during the work season to contract out this project after it assessed its manpower level does not coincide with the timeline of events and is not credited.
Rule I expressly states that the Carrier can proceed with contracting out even if there are no understandings reached during conference provided that all prerequisites have been satisfied, including those prescribed in Appendix H. Restated, the obligatory prerequisites must be met prior to the contracting transaction. Based on the timeline of events, the prerequisites in Rule I and Appendix H were not satisfied in the circumstances of this claim. Therefore, the claim must be sustained.
The Claimants may have been fully employed but, as noted in Public Law Board No. 6493, Award 24, full employment does not preclude monetary relief because it serves to reinforce contractual obligations for notice, conference and goodfaith discussion requirements in Rule I and Appendix H. The proportioned share of time requested as relief for each Claimant can be readily constructed from the records maintained by the Carrier for the claimed work.
