Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44263 Docket No. MW-43486
20-3-NRAB-00003-200413
The Third Division consisted of the regular members and in addition Referee
B. Helburn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(BNSF Railway Company (Former Burlington Northern (Railroad Company)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces (Rail Pros) to perform Maintenance of Way and Structures Department work (flagging work) between “Mile Posts 21.5 and
23.6 on the Sidney Subdivision, Montana Division on September 15 and 16, 2014 (System File B-M-2784-E/11-15-0120 BNR).
The Agreement was violated when the Carrier assigned outside forces (Rail Pros) to perform Maintenance of Way and Structures Department work (flagging work) between Mile Posts 0.00 and 1.3 on the Scobey Subdivision, Montana Division beginning on September 15, 2014 through September 25, 2014 (System File B- M-2785-E/11-15-0121 BNR).
The Agreement was violated when the Carrier assigned outside forces (Rail Pros) to perform Maintenance of Way and Structures Department work (flagging work) between Mile Posts 65.3 and
67.5 on the Scobey Subdivision, Montana Division beginning on September 15, 2014 through October 4, 2014 (System File B-M- 2786-E/11-15-0122 BNR).
The Agreement was violated with the Carrier assigned outside forces (Rail Pros) to perform Maintenance of Way and Structures Department work (flagging work) between Mile Posts 51.1 and
52.7 on the Scopey Subdivision, Montana Division beginning on September 15, 2014 through September 25, 2014 (System File B- M-2787-E/11-15-0123 BNR).
The agreement was further violated when the Carrier failed to provide the General Chairman with advance notification 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 regarding the aforesaid work or make a good-faith attempt to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces or reach an understanding concerning such contracting as required by the Note to Rule 55 and Appendix Y.
As a consequence of the violations referred to in Parts (1) and/or
above, Claimant K. Mitchell shall now be compensated for sixteen (16) hours at his applicable straight time rate of pay and one (1) hour at his applicable time and one-half rate of pay.
As a consequence of the violations referred to in Parts (2) and/or
above, Claimant K. Mitchell shall now be compensated for seventy-two (72) hours at his applicable straight time rate of pay and sixty-five and one-half (65.5) hours at his time and one-half rate of pay.
As a consequence of the violations referred to in Parts (3) and/or
above, Claimant K. Mitchell shall now be compensated for one hundred twenty (120) hours at his applicable straight time rate of pay and seventy (70) hours at his time and one-half rate of pay.
As a consequence of the violations referred to in Parts (4) and/or
above, Claimant K. Mitchell shall now be compensated for seventy-two (72) hours at his straight time rate of pay and sixty- five and one-half (65.5) hours at his time and one-half rate of pay.”
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.
Parties to said dispute were given due notice of hearing thereon.
This case encompasses four (4) claims, all with essentially identical fact patterns. For reasons noted below, no notice of intent to contract the flagging work was issued. Witness statements by Track Inspector Steve Shelton cover the period of the claims. The timely claims were properly progressed on the property without resolution and referred to the National Railroad Adjustment Board for final adjudication.
The Organization asserts that the claim should be sustained as the disputed work has been “customarily, traditionally and historically” performed by Maintenance of Way forces, as the attached job bulletins and statements attest to flagging as fundamental Maintenance of Way work. The Carrier’s failure to notify the General Counsel in writing of plans to subcontract the flagging violated the Note to Rule 55 and Appendix Y. The notification requirement is not waived by the possible existence of one of the exceptions that would allow contracting out. The Carrier has not made the required good faith effort to reduce subcontracting and increase the use of Maintenance of Way forces.
The Carrier’s affirmative defenses are invalid, but the failure to provide written notice alone requires a sustaining award. The Organization has produced a prima facie claim through witness statements that the disputed work was performed. The Carrier has failed to show that the flagging “was not performed at the Carrier’s initiative, under its control or at its expense,” as no relevant documents were produced. The Carrier has not maintained an adequate work force, having had since 2008 to plan for the impact of the Bakken Shale discovery. The contention that Appendix Y is inapplicable is meritless as it is a binding contractual commitment. Also meritless is the Carrier’s exclusivity defense. The appropriate test is whether the flagging has been customarily performed by Maintenance of Way forces, as the Organization has conclusively demonstrated. The Claimant was unavailable to flag only because the Carrier has assigned him elsewhere. The Carrier made no effort to assign one of its own employees. A monetary remedy is
appropriate to make the Claimant whole for lost work opportunities and to protect the integrity of the contract. Such a remedy is not vitiated because the Claimant was fully employed or on approved leave. There is abundant precedent for a remedy at the overtime rate.
The Carrier insists that the claim should be denied, as arbitral precedent controls the dispute in light of prior Awards and additional documentation that flagging work is not reserved to Maintenance of Way forces. A mixed practice does not stop the Carrier from contracting the work. Moreover, Awards have held that “a Company is not in violation of scope rules where a third party, and not the Company, controls the work and expense.” The disputed flagging was to provide protection for “survey crews working on adjacent tracks on private industries at various locations on the Sidney and Scobey Subdivisions.” Moreover, “numerous on-property awards have further held that no notice need be provided to the Organization in situations such as this.” Flagging work is not reserved to Maintenance of Way forces by Rule 1 Scope, which is a general scope rule, or by a past practice showing that such forces performed flagging duties exclusively, system-wide. The Board is faced with an irreconcilable factual dispute that requires dismissal or denial of the claim.
The Organization, the moving party, has not met its burden of proof with probative evidence. Reliance on Appendix Y is misplaced as the Appendix does not prohibit contracting and, moreover, is not applicable on BNSF property. Should the claim be sustained, no monetary damages should be assessed because the Claimant was fully employed at times relevant and has not shown out-of-pocket expenses. Liquidated or punitive damages are not contractually provided.
At the hearing, the Board was informed that this claim had been withdrawn by the Organization
Claim dismissed.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 23rd day of October 2020.