Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44268 Docket No. MW-43512
20-3-NRAB-00003-200418
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 (Jensen and Jensen) to perform Maintenance of Way and Structures Department work (install retaining walls) at Centralia South on the Seattle Subdivision on October 20, 21, 22, 23, 24, 27, 28, 29, 30 and November 3 and 4, 2014 (System File S- P-1955-G/11-15-0193 BNR).
The agreement was further violated when the Carrier failed to provide the General Chairman with advance notification of its intent to contract out the aforesaid work or make a good-faith effort to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces as required by Rule 55 and Appendix Y.
As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants F. Stephenson, L. Sanford, J. Williams, B. Gallagher and B. Meek shall now each ‘… be allowed 79.5 hours of straight time and 5 hours of overtime and all benefits that the claimant did not received because of these violations until the violation stops.’”
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.
By letter dated February 14, 2013 the Carrier gave notice to the General Chairman that:
“The Washington State Department of Transportation (WSDOT) has requested improvements in conjunction with its ongoing Intercity Passenger Rail expansion projects on the Seattle, Sonic, and Bellingham Sub-Divisions…This is a multi-year, multiphase construction project in three sub-divisions to include new track and turnout placement, rehabilitation of existing track, drainage and bridge construction, extensive dirt work, and relocation of existing Mechanical facilities. BNSF is not adequately equipped to handle the magnitude of this new project. Moreover, BNSF forces do not possess all of the specialized skills required for aspects of this project.”
The notice then listed the myriad elements of the project that would be contracted, including “install approx. 6,400 l.f. various concrete walls (including crash walls, soil nail, and retaining walls). . . That list was followed by the work to be performed by BNSF forces, including a significant amount of track and tie work as well as flagging. The work was projected to begin on or about March 5, 2013. At the Organization’s request, the notice was conferenced on June 7, 2013. According to the Organization, the disputed work was not discussed.
The disputed work—the installation of retaining walls—was performed by outside forces in late October and early November 2014. The resulting timely-filed claim included the days and hours worked by the outside forces and the personnel
and machinery used. Attached to the claim were photos of the contractor-built wall and similar walls built by BNSF forces. The claim was progressed on the property without resolution and advanced to the National Railroad Adjustment Board for final adjudication.
The Organization insists that the claim be sustained as the disputed work has been customarily and routinely done by Maintenance of Way forces and, therefore, is reserved for these forces. The Carrier has conceded that the disputed work is scope work. The Carrier forces had the skills and the Carrier had a small-tracked excavator to handle the work. The Note to Appendix 55 and Appendix Y were violated by the blanket notice that did not mention the retaining wall at Centralia South or elsewhere. None of the exceptions existed that would have allowed the Carrier to contract the work. The Carrier has not made a good-faith effort to reduce subcontracting and increase the use of its own forces. The Carrier has not appropriately staffed Maintenance of Way forces in order to perform this work.
Carrier defenses should not be considered because of the faulty notice, which did not include the location of the work, but the defenses are invalid. The Carrier has not denied that the contracted work occurred. Appendix Y applies on BNSF property. The Organization must show only that its forces performed the work customarily, not exclusively. The “piecemeal defense” is inapplicable. That the work was done at WSDOT’s request is immaterial. The work was not covered by the BRS. Damages are appropriate because work opportunities were missed and to protect the integrity of the Agreement.
The Carrier insists that the claim should be denied as the Organization has not shown that the disputed work was scope work or was reserved to Maintenance of Way forces. Appendix Y is not applicable on BNSF property and, moreover, does not prohibit subcontracting. The Organization has not provided evidence of the equipment used by the outside forces or the availability of the equipment without or without operators. Nor is there evidence of the outside forces used. The retaining wall in question differed from standard retaining walls as it was specially engineered. No violation has been established. The Carrier was not equipped to handle this large project and did not have to piecemeal the work. BNSF did not have to give notice since the project was for the benefit of Washington state and Amtrak. Were the claim to be sustained, damages would be inappropriate as the Claimants were fully employed at the time, including some overtime.
The Organization bears the burden of proof in contracting cases and, consequently, must show that the disputed work has been performed by Maintenance of Way forces such that with certain exceptions the work should have been assigned to Carrier forces. The Organization and the Carrier continue to dispute whether the showing must be that the work was customarily, traditionally and historically performed by Maintenance of Way forces as the Organization contends or performed exclusively, system-wide as the Carrier contends. The analysis concluding that customarily rather than exclusively has been set forth in other awards and will not be repeated here. Despite the existence of earlier awards that have adopted the exclusive, system-wide approach, at this time there is continuing agreement in on-property awards, including awards in which contracting claims have been denied, the “customarily” is the proper level at which the Organization must show that the disputed work falls under Rule 1 Scope which, as the Carrier notes, is a general Scope Rule. Third Division Awards 43662, 43566, 43966, 40563, 20338, PLB 4402, Award 20, PLB 4768, Award 1.
If the Organization shows that it has customarily performed the disputed work, then it must show that the work was contracted to outside forces. If these elements of the burden of proof are met, the Organization will have established a prima facie case that shifts the burden of proof to the Carrier. Not only must the Carrier show that a notice of intent to contract was issued to the Organization a minimum of fifteen (15) days before the work was to have commenced, but also the Carrier must show that the notice included reasonable specifics about the work to be performed, the location where the work would be performed and the approximate time frame in which the work would take place. “Emergency time requirements” allow the Carrier to contract with outside forces without providing the notice. Exceptions that do not waive the notice requirements, but ultimately allow the Carrier to contract the work are found in the Note to Rule 55 that reads in relevant part as follows
“. . . such work may be contracted provided that special skills not possessed by the Company’s employes (sic), special equipment not owned by the company, or special material available only when applied or installed through the supplier, are required; or when work is such that the Company is not adequately equipped to handle the work, or when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company’s forces.”
Moreover, the December 11, 1981 Letter of Agreement, the Berge-Hopkins letter often referred to as Appendix Y, contains additional requirements to be met by the Carrier, including notice requirements, as set forth below:
“The carriers assure you that they will assert good-faith efforts to reduce the incidence of subcontracting and increase the use of their maintenance of way forces to the extent practicable, including the procurement of rental equipment and operation thereof by carrier employees.
The parties jointly reaffirm the intent of Article IV of the May 17, 1968 Agreement that advance notice requirements be strictly adhered to and encourage the parties locally to take advantage of the good faith discussions provided for to reconcile any differences. In the interests of improving communications between the parties on subcontracting, the advance notices shall identify the work to be contracted and the reasons therefor.”
Even if the Carrier can show that over time, both Maintenance of Way and outside forces, or even another craft, have performed the disputed work—a mixed practice—the Carrier is obligated to provide a proper notice and to conference about the notice if requested.
If the Organization can show that the work performed by outside forces was not identified in the notice or that the work was performed by outside forces without the special skills and/or the special equipment that the Carrier stated was lacking, then it is possible that the notice will be found defective and the Organization’s claim will be sustained.
The Organization relies on Appendix Y in contract cases, while the Carrier asserts that not only does the Appendix not preclude subcontracting, but also it does not apply on BNSF property. Like the “customarily-exclusively” dispute the Appendix Y dispute has been resolved by a series of on-property awards that include Appendix Y in the Board’s analysis. Third Division Awards 39685, 40563, 40670, 40798, PLB 6204, Award 33.
The third dispute in this analytical framework involves the award in cases where the claim has been sustained. The Carrier insists that damages are not appropriate because the Claimants were fully employed, possibly including
overtime, at times relevant. Conversely, the Organization contends that even when Claimants are fully employed or on approved leave, damages are appropriate because the Claimants have lost work opportunities and to protect the integrity of the Agreement since a violation should not go without a remedy. Moreover, the Organization contends that it has the right to name the Claimant(s) who will benefit from a sustaining award. This Board finds that this dispute has been resolved by a series of on-property sustaining awards where damages, including overtime payments, have been ordered, although damages may vary as to whether overtime is included and whether particular circumstances may affect some Claimants.
Third Division Awards 40677, 37470, 40567, 40563, 40798.
Before considering whether the Organization has provided the necessary prima facie case, two matters may be disposed of peremptorily. First, despite the language in Part (2) of the claim, a notice of intent to contract was issued and conferenced, albeit without agreement. Additionally, the dispute before this Board is not about whether the work should have been assigned to Maintenance of Way forces or BRS forces. While the record contains a letter from the Carrier to the BRS General Chairman and the BRS is mentioned almost in passing in the submissions, the extensive record makes obvious that this is a dispute over the assignment of work to outside, off-property forces.
The photos appended to the claim as well as the Carrier’s acknowledgement that outside forces installed the retaining walls evidence the work performed by outside forces. However, the Organization’s case falters on the question of customary and traditional performance of retaining wall work. It is well-established that Rule 1 Scope is a general scope rule. Language in the Note to Rule 55 also is general, stating that employees included with the scope of the Agreement “perform work in connection with the construction and maintenance or repairs of and in connection with the dismantling of tracks, structures or facilities located on the right of way and used in the operation of the Company in the performance of common carrier service. . .” The record includes photos of a retaining wall said to have been built at Centralia South by Maintenance of Way forces and a photo of what appears to be a second retaining wall at an unidentified location, also said to have been built by Maintenance of Way forces. The record contains an extensive, undated statement by Mr. William T. McCarthy that does not include explicit mention of retaining wall work. Also, in the record is a statement describing the work of a Typical Bridge Construction Gang, but that statement also does not include explicit or even implicit mention of retaining walls. The Board accepts the evidence that Maintenance of Way forces built the pictured wall, but two walls do
not establish that this work has been performed customarily and routinely. Without such a showing, there is no prima facie case, leaving the Carrier free to contract the work and rendering all questions about the Carrier’s need to issue a notice of intent to contract and the contents of that notice moot.
Claim denied.
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.