Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44355 Docket No. MW-45708
21-3-NRAB-00003-200020
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
(National Railroad Passenger Corporation (AMTRAK) – (Northeast Corridor
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces to perform Maintenance of Way and Structures Department work (right of way cleanup) at ten (10) tracks at 30th Street Station on June 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 24 and 25, 2018 and continuing (System File NEC- BMWE-SD-5708 AMT).
As a consequence of the violation referred to in Part (1) above, Claimant J. Ciferni or the next senior qualified Bridge and Building (B&B) inspector shall now receive one hundred thirty
(130) hours’ compensation at the overtime 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.
The Claimant established and holds seniority in the Carrier’s Maintenance of Way Bridge and Building (B&B) Department. On the dates giving rise to this dispute, the Claimant was assigned and working as a B&B inspector.
On December 15, 2017, the Carrier notified the Organization that it intended to allow outside forces to perform hazardous right of way clean-up work in its 30th Street Station on ten tracks that were contaminated. The notice states, in part:
“This is an Informational Notice to advise of Amtrak’s intent to use a contractor for a Major Project for remediation of PCB Contaminated materials from the Track Level at the 30th Street Station in Philadelphia, PA. This is a multi-year project for the proper removal and disposal of PCB contaminated soil, sediment and debris from the track level. The removal will be from concrete body tracks, the column line between the tracks and the under platform areas.
***
Contractor forces are properly trained in accordance with 29 CFR part 1910.120, an OSHA requirement that the BMWE forces do not possess, in order to perform this Hazmat work. Contractor forces will be used to complete the project outlined above, and will furnish labor, materials, and equipment to complete the work. It is anticipated that the average daily contractor work force will be approximately 12 workers working the night shift. Actual contractor staffing will be at the discretion of the contractor.
Amtrak forces will provide RWP support and protection. Amtrak forces will range from one (1) to two (2) people per day, as determined by the Amtrak project manager.
***
This major project requires a significant level of specialized skills, certifications and/or equipment that Amtrak forces do not normally utilize or perform, including hazmat environmental protocols and
training. Moreover, it is the Carrier's long stated position that Hazmat Remediation is not considered to be scope covered work.”
On December 19, 2017, in response to the notice, the Organization requested a contracting conference. The Organization took the position that its members could do some of the work where the contamination levels were low, but would agree to contractors performing all of the work, under certain conditions. After conferencing on March 1, 2018, the General Chairman and the Carrier’s officials entered into a Labor Clearance Agreement (“03-LCR-15-1217”). Afterward, the Director of Labor Relations confirmed the parties’ agreement, writing:
“As outlined in our letter dated December 15, 2017, this project involves the use of a contractor to perform Hazmat work at 30th Street Yard for the proper removal and disposal of PCB contaminates.
We are in agreement with your letter dated March 5, 2018 as confirmed in our discussions that Amtrak BMWE forces will perform the following work:
Dedicated B&B Inspector advertised under Rule 3 of the BMWE agreement or assigned if the job goes no bid to be present whenever the job is active.
RWP Protection as required.
No Amtrak forces will be furloughed as a result of this contracting of work.
We believe the foregoing reflects our discussions and addresses the Organization's concerns in this matter, and we plan to proceed accordingly.”
On June 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 24 and 25,
2018 and continuing, the Carrier assigned outside forces to perform right of way cleanup at ten tracks at 30th Street station. The Carrier did not assign a B&B inspector to be present while this work occurred.
By letter dated June 28, 2018, the Organization presented a claim to the Carrier which was denied by letter dated August 27, 2018. The parties were unable to resolve the claim on-property, so it is now properly before this Board for final adjudication.
The Organization contends that the Carrier clearly violated the Labor Clearance Agreement when it failed to assign the Claimant, a B&B Inspector, to be present while outside forces performed right-of-way cleanup at ten tracks at the 30th Street Station. The Organization contends that there is no ambiguity in the Labor Clearance Agreement and the Carrier cannot refuse to assign the Claimant. The Organization contends that the Carrier has attempted to unilaterally modify the terms of the parties’ Labor Clearance Agreement.
The Carrier initially raised a procedural objection: it asserts that the Statement of Claim presented to this Board differs substantially from the claim discussed on property. The Carrier contends therefore, that the claim must be dismissed.
The Carrier further contends that the Organization has failed to demonstrate that the work, PCB removal, is Scope-covered. The Carrier contends that the contracting notice was only informational, and the Organization’s consent was not required in the first place. Therefore, the Labor Clearance Agreement was not binding. Furthermore, the Carrier contends that no one with authority to bind the Carrier agreed to the terms.
With respect to the procedural issue raised by the Carrier, this Board finds that there is not a substantial variance between the claim raised on property and the claim submitted to this Board. The Organization’s position has been all along that if the Carrier is to use contractors to perform cleanup at this location, a B&B Inspector must be assigned pursuant to the terms of the 03-LCR-15-1217 Labor Clearance Agreement. The facts and the rules relied upon are the same, and the claims have the same underlying theory.
With respect to the merits of the claim, the Carrier takes the position that because the cleanup work was not Scope-covered at the outset, it was not required to reach any agreement with the Organization and thus, any pledge was a gift, not a binding Agreement. But this position ignores what occurred. The Organization disagreed that the work was not Scope-covered and requested a contracting conference, as was its right under the parties’ Agreement. The parties met on March 1, 2018, to discuss the dispute and reached a compromise.
There is no question that the parties disagreed as to whether the work covered by the Notice was Scope-covered and in order to resolve that disagreement, they entered into the Labor Clearance Agreement quoted above. Irrespective of the correctness of either party’s initial position, the final Agreement is binding on both parties, having been negotiated in good faith during a contractual contracting conference. Furthermore, regardless of who participated in the initial conference, the Labor Clearance Agreement was confirmed by numerous Carrier representatives, including the Director of Labor Relations, thus binding the Carrier.
The Carrier argues that the Labor Clearance Agreement was not violated on the claimed dates, because the Organization has not shown that the work was Scope- covered, and thus, it was not required to assign a B&B Inspector. In accord with long- accepted rules of contract interpretation, it is not this Board’s province to read into the Agreement provisions that the parties themselves did not include. See, Third Division Award 24306, “This Board must be bound by the clear language of an Agreement. We cannot read into (the Agreement) anything except what it sets out in unmistakable clarity.”
The Carrier’s position ignores the plain language of the Labor Clearance Agreement in which the Carrier agreed to advertise or assign a B&B Inspector “whenever the job is active,” not whenever the underlying work is Scope-covered. That dispute was already resolved during the contracting conference. Based on the initial contracting notice sent, the “job” was the removal of “PCB contaminated soil, sediment and debris from the track level…from concrete body tracks, the column line between the tracks and the under platform areas.” In the on-property correspondence, there is no dispute that this work took place.
Thus, the plain language of the Labor Clearance Agreement is controlling. The Carrier violated the negotiated terms.
The remaining question concerns the proper remedy. The Organization contends that the Claimant is entitled to be compensated at the overtime rate for the hours that the job was active, because the Claimant was fully employed during the day and the job was active on another shift. But the terms of the Labor Clearance Agreement required the Carrier to advertise the B&B Inspector position, and to assign it only if it went no bid. Thus, it cannot be said with confidence that the
Claimant would have been assigned. The Statement of Claim recognizes as much. While there is substantial precedent in support of either method of remedying a successful claim, given the unique circumstances presented here, this Board has determined to follow the apparent majority on this property which has awarded straight time compensation only for the claimed hours.
Claim sustained in accordance with the Findings.
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 6th day of January 2021.