THIRD DIVISION
Award No. 44292 Docket No. MW- 43534 20-3-NRAB-00003-200436
The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens 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 (Five Star Builders) to perform Maintenance of Way and Structures Department work (set up temporary offices and remodeling the offices and locker rooms at the Car Shop Mechanical Building) in Pasco, Washington beginning October 13, 2014 and continuing through November 6, 2014 (System File S-P- 1958-S/11-15-0207 BNR).
The Agreement was further violated when the Carrier failed to notify the General Chairman in writing in advance of its intent to contract out the aforesaid work or to 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 L. Smith, D. Scott and A. Zeff shall now each be allowed an equal and proportionate amount of all hours worked by the contractors on this project at their respective rates 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.
The Claimants have established and hold seniority within various classifications of the Carrier’s Maintenance of Way Department, including Bridge and Building (B&B) foreman, water service foreman, and B&B first class carpenter.
Beginning on October 13, 2014 and continuing through November 6, 2014, the Carrier assigned outside forces (Five Star Builders) to set up temporary offices and remodel the offices and locker rooms at the Car Shop Mechanical Building in Pasco, Washington on the Northwest Division. The four contractor employes accrued a combined total of 496 hours and 108 overtime hours while performing this work.
The Organization filed this claim which was appealed to the highest officer on- property. As the parties were unable to resolve the claim, it is now properly before this Board for final adjudication.
The Organization contends that the work of setting up temporary offices, and remodeling offices and locker rooms is typical Maintenance of Way work, which has customarily and historically been assigned to and performed by the Carrier’s Maintenance of Way forces and is contractually reserved to them.
The Organization further contends that because the work is scope-covered, it may only be contracted out under certain unique, express conditions and only after:
(1) the Carrier has asserted good-faith efforts to use its own forces; (2) the Carrier has notified the General Chairman, in writing, in advance of its intent to contract out; and
(3) the Carrier has provided the General Chairman the opportunity to discuss the matters surrounding the contracting out transaction in a good-faith attempt to reach an understanding.
The Organization contends that the Carrier has never asserted that it provided advance notification of its intent to contract out the claimed work. The only notice offered gave notice of work to begin on January 8, 2015, after the claimed work had been contracted out. The Organization contends that because the Carrier failed to notify the General Chairman of the contracting, the exceptions to the Note to Rule 55 cannot apply and a violation has been proven.
The Carrier contends that the Scope Rule does not delineate any particular tasks that must be assigned to its Maintenance of Way forces. Therefore, the Carrier contends that the Organization bears the burden of proving that the work has been exclusively assigned to its members. The Carrier contends that Appendix Y was never intended to be a restriction on contracting out.
Here, there is no dispute that the work took place as claimed. Further, the Carrier’s argument that the Organization must show that the work was performed exclusively by its members in the past, is contrary to the clear language of the parties’ Agreement and has been rejected numerous times by prior Boards that have considered the issue. For example, in Third Division Award 40563, this Board wrote,
“After reviewing and considering the Awards submitted, the Board is of the opinion that the better interpretation is that “customarily” has its ordinary meaning, that is, “historically and traditionally.” For one thing, it is a basic principle of contract interpretation that language should be given its ordinary meaning, in the absence of any indication from the parties that they intended some different meaning.…The reasoning set forth in Public Law Board No. 4402, Award 20 is persuasive, particularly in noting that “Had these sophisticated negotiators intended that these disputes were to be governed by the exclusivity doctrine, they could have easily said so.” As the PLB pointed out in that case, the word “exclusive” is used extensively throughout the industry. The parties’ failure to use it in the Note to Rule 55, using “customarily” instead, “supports the conclusion that the parties did not intend to apply the exclusivity principle to contracting out issues.”
The Carrier concedes that the Organization was able to show that the work had customarily been performed by the Maintenance of Way. As such, it was incumbent on the Carrier to provide proper notice to the Organization of its intent to contract out the work and to show that it met one of the exceptions listed in the Note to Rule 55. Such notice must contain enough specificity to allow the parties to have a meaningful dialogue regarding the intent to contract out. Third Division Award 42542.
Here, the Carrier has not provided proof of notice to the Organization of an intent to subcontract the claimed work. Furthermore, no evidence of such notice was shared or identified as part of the on-property discussion of the claim. Without such notice, the Carrier cannot demonstrate that it met one of the exceptions. Therefore, the Claimants are entitled to monetary damages.
Claim sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 23rd day of October 2020.
THIRD DIVISION
INTERPRETATION NO. 1 TO AWARD NO. 44292 DOCKET NO. 43534
Old NRAB Case No. 3-200436 New NRAB Case No. 3-210596
(Employes Division - IBT Rail Conference
((Former Burlington Northern Railroad Company)
“Request of the Carrier for Interpretation of Third Division Award 44292, Docket No. Docket No. 43534, NRAB Case No. 3-200436.”
The Organization filed the initial claim on behalf of three Claimants when, beginning on October 13, 2014 and continuing through November 6, 2014, the Carrier assigned outside forces (Five Star Builders) to set up temporary offices and remodel the offices and locker rooms at the Car Shop Mechanical Building in Pasco, Washington on the Northwest Division. The four contractor employees accrued a combined total of 496 hours and 108 overtime hours while performing this work.
Third Division Award 44292 was adopted on October 23, 2020. The Award sustained the Organization’s claim, finding that the Carrier failed to provide proof of notice to the Organization of an intent to subcontract the claimed work, and that without such notice, the Carrier could not demonstrate that it met one of the exceptions listed in the Note to Rule 55. The Board found that Claimants were entitled to monetary damages.
The parties initially agreed that the damages would total $19,800, divided on a pro-rata basis among the three Claimants. One of the Claimants resigned, signing a
Form 1 Serial No. 424
Page 2 Interpretation No. 1 to
Award No. 44292
Docket No. 43534
waiver forfeiting his right to compensation on any outstanding labor claims. This dispute arose when the Organization contended to the Carrier that the Claimant’s portion of the recovery should be equally divided between the remaining two Claimants. The Carrier objected, responding that the remaining Claimants were not entitled to any additional amounts due to the resignation of their fellow employe.
The Board finds that damages were initially awarded to the Claimants to compensate each of them for their lost work opportunity. The parties then calculated the total number of hours worked by the subcontractors and divided it evenly between the three Claimants, in order to approximate the number of hours that each Claimant would have performed, given the opportunity.
The calculated damages were intended to compensate each of the Claimants for their lost work opportunity; it is not a lump sum due. The resignation of one Claimant with a waiver of entitlement to any labor claims does not increase the share owed to either of the remaining Claimants. Doing so would create a windfall for the remaining Claimants, as they would then receive more than a pro-rata share of the damages. The total damages owed by the Carrier should be reduced by $6600.00, which was forfeited by the Claimant who resigned.
Referee Kathryn A. VanDagens who sat with the Division as a neutral member when Award 44292 was adopted, also participated with the Division in making this Interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 28th day of January 2022.