In the Matter of Arbitration Between
BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYES
and
BURLINGTON NORTHERN RAILROAD COMPANY
BACKGROUND
OPINION AND AWARD
Before an Article I,
Section 11 Arbitration
Committee, Nicholas H.
Zumas, Neutral.
The undersigned Neutral was selected as Chairman of an Arbitration
Committee established pursuant to Article I, Section 11 of ICC Finance
Docket No. 28250 (hereinafter "flew York Dock" or "NYD"). Hearing was held
November 14, 1988 in Washington, D.C. at which time exhibits were offered
and received into evidence and oral argument was heard. The parties
presented pre-hearing submissions. The Brotherhood of Maintenance of Way
Employes (hereinafter "BMWE" or "Organization") was represented by Vice
President S. W. Waldeier and the Burlington Northern Railroad Company
(hereinafter "BN" or "Company") was represented by Director of Labor
Relations Wendell A. Bell.
STATEMENT OF FACTS
This matter involves more than 50 claims by BMWE on behalf of its
members and created a voluminous record which the BMWE asserts measures 17
inches when stacked one on the other. Where appropriate, therefore, this
Arbitrator has avoided redundancy, referred to the record7and consolidated
his treatment of various aspects of the case where such action is fair and
efficient.
In the second half of 1983, BN began a process of consolidation of its
sections. This process involved the abolishment of some sections and the
attendant abolishment of section foreman positions. Since the trackage of
BN was not reduced proportionally throughout the system, this process
generally increased the geographic area that a foreman supervised. The
process of consolidation continued through 1987.
Appendix F of the September 1, 1982 Schedule Agreement, derived from
the October 7, 1959 National Mediation Agreement, provides:
IT IS AGREED:
Article I - PRIOR CONSULTATION
In the event a carrier decides to effect a material change in
work methods involving employes covered by the rules of the
collective agreement of the organization party hereto, said
carrier will notify the General Chairman thereof as far in advance
of the effectuation of such change as is practicable and in any
event not less than fifteen (15) days prior to such effectuation.
If the General Chairman or his representative is available prior
to the date set for effectuation of the change; the representative
of the carrier and the General Chairman or his representative
shall meet for the purpose of discussing the manner in which and
the extent to which employes represented by the organization may
be affected by such change, the application of existing rules such
as seniority rules, placement and displacement rules and other
pertinent rules, with a view to avoiding grievances arising out of
the terms of the existing collective agreement and minimizing
adverse effects upon the employes involved.
As soon as is convenient after the effective date of this
Agreement, and upon the request at reasonable intervals thereafter, the carrier and the General Chairman or his representative
will
meet informally in a conference to discuss such suggestions
2
as the General Chairman may have to minimize seasonal fluctuations
in employment.
This Article does not contain penalty provisions and it does
not require that agreements must be reached as the right of the
carrier to make changes in work methods or to continue existing
practices subject to compliance with the collective agreement is
not questioned.
ARTICLE II - RATES OF PAY
A. The rates of pay of employes subject to the rates of pay
rules of the collective agreement between the parties hereto shall
be listed in a master wage schedule prepared by the carrier. A
copy of this wage schedule shall be furnished to the General
Chairman for his verification. The wage schedule shall constitute
a part of the rates of pay, rules and working conditions agreement
between the parties, but may be physically bound with the general
working conditions agreement reproduced as a document under
separate cover. This rule does not require that multiple
positions of the same classification and carrying the same rate of
pay need be individually listed, but the listing shall be in
whatever detail is necessary to enable the ascertainment from the
schedule of the rate of pay for each position of employes referred
to herein. When rates of pay are generally revised and when
revisions are made in individual rates of pay, the General
Chairman shall be furnished with a statement of the adjustments to
be made in the rates as shown in the master wage schedule. When
the rules and working conditions agreement is generally revised or
reprinted the master wage schedule shall be revised to show the
then current rates of pay and reproduced and distributed in the
same manner as the Rules an Working Conditions Agreement.
B. The listing of rates of pay in the Agreement does not
constitute a guarantee of the continuance of any position or any
certain number of positions or anything else other than as stated
in paragraph A hereof.
ARTICLE III - RATES OF PAY OF NEW POSITIONS AND ADJUSTMENT
OF
RATES
OF
SUPERVISORY EMPLOYES COVERED BY THE RULES
OF THE COLLECTIVE AGREEMENT BETWEEN THE PARTIES
HERETO WHERE DUTIES AND RESPONSIBILITIES HAVE
ALLEGEDLY BEEN EXPANDED
A. If a new position is established for which a rate of pay
has not been agreed upon, the carrier will in the first instance
establish a rate which is commensurate with the duties, responsibilities, characteristics and other requirements of said
position. If the General Chairman does not agree that the rate of
pay so established is commensurate with the duties, responsibilities, characteristics, and other requirements of the
position, he shall so notify the carrier and thereupon the duly
authorized representative of the carrier shall meet with the
General Chairman or his representative for the purpose of mutually
agreeing upon a rate which will be satisfactory to both parties.
In the event of failure to reach a mutual agreement on the
subject, it will be submitted to arbitration in accordance with
paragraph C of this Article.
B. If, as the result of change in work methods subsequent to
the effective date of this Agreement, the contention is made by
the General Chairman that there has been an expansion of duties
and responsibilities of supervisory employes covered by the rules
of the collective agreement between the parties hereto resulting
in a request for wage adjustment and a mutual agreement is not
reached disposing of the issue thus raised, the matter will be
submitted to arbitration in accordance with paragraph C of this
Article.
C. The submissions to arbitration provided for in paragraphs
A and B of this Article shall be under and in accordance with the
provisions of.the Railway Labor Act; shall be between the
individual carrier and the system committee of the organization
representing employes of such carrier; and shall be governed by an
arbitration agreement conforming to the requirements of the
Railway Labor Act which shall contain the following provisions:
(1) shall state that the Board of Arbitration is to
consist of three members;
(2) shall state specifically that the question to be
submitted to the Board for decision shall be limited to
the single question as to whether the rate established
by the carrier should be continued or whether the rate
suggested by the General Chairman should be adopted or
whether an intermediate rate is justified; and that in
its award the said Board shall confine itself strictly
to decision as to the question so specifically submitted
to it;
(3) shall fix a period of ten (10) days from the date of
the appointment of the arbitrator necessary to complete
the Board within which the said Board shall commence its
hearings;
(4) shall fix a period of thirty (30) days from the
beginning of the hearings within which the said Board
shall make and file its award; provided, that the
parties may agree at any time upon the extension of this
period;
(5) shall provide that the award shall become effective
on the date that it is rendered and the rate awarded
4
shall continue in force until changed or modified
pursuant to the provisions of the Railway Labor Act.
In 1964, the following agreements and memoranda were produced in
mediation between BMWE and Spokane, Portland and Seattle Railway Company
("SP&S"), one of the later component carriers of the BN.
ATTACHMENT A
MEMORANDUM OF AGREEMENT
between
Brotherhood of Maintenance of Way Employes
and
Spokane, Portland and Seattle Railway Company (System Lines)
Effective July 16, 1964, the rate of pay of the operator of
the two machines described below will be $2.6428 per hour:
McWilliams Air Hydraulic Production Tamper,
identified as R-23
Autojack Electromatic Tamper, identified as R-25
Dated at Portland, Oregon this 15th day of July 1964.
ATTACHMENT B
NMB Case No. A-7197
MEDIATION AGREEMENT
between
Brotherhood of Maintenance of Way Employes
and
Spokane, Portland and Seattle Railway Company (System Lines)
In settlement of the differences as set forth in an application for mediation as described in Docket Case No. A-7197 of the
National Mediation Board and under the provisions of the Railway
Labor Act, amended, it is mutually agreed that the questions so
submitted shall be and are hereby disposed of as follows:
5
(1) Memorandum of Agreement, attached hereto but not made
a
part hereof, covering adjustment in rates of pay of Section
Foremen whose sections are lengthened because of consolidation of
sections;
(2) Memorandum of Agreement, attached hereto but not made a
part hereof, covering rates of pay of operator of McWilliams Airhydraulic Production Tamper identified as R-23 and Autojack
Electromatic Tamper identified as R-25.
This agreement shall become effective July 16, 1964 and
remain in effect until changed in accordance with the Railway
Labor Act, amended. This in full, complete and final settlement
of the Brotherhood's notices of June 13, 1960, August 10, 1960 and
January 16, 1964.
Dated at Portland, Oregon this 15th day of July, 1964.
ATTACHMENT C
MEMORANDUM OF AGREEMENT
between
Brotherhood of Maintenance of Way Employes
and
Spokane, Portland and Seattle Railway Company (System Lines)
Effective July 16, 1964 the rates of pay of the foremen of
the sections named below whose sections were lengthened due to
consolidation of sections will be adjusted by adding fifty (50)
cents per mile per month to the basic line section foreman's
monthly rate of pay.
Present New
Section No. Headquarters Rate Rate
25 Bingen $431.54 $435.54
26 Lyle 431.54 434.04
34 Paterson 431.54 434.04
35 Plymouth 431.54 434.54
36 Finley 431.54 434.04
If any sections are lengthened in future due to consolidation
of sections, the monthly rate of foremen whose sections are
lengthened will be adjusted on this same basis. Fractions less
than one-half (1/2) mile will be dropped; fractions greater than
1/2 mile will be figured as one mile.
Dated at Portland, Oregon this 15th day of July, 1964.
6
The trackage acquired by
BN
which led to the section consolidations and
abolishments in the early and mid-1980s was generally in good repair. As to
the mechanics of the operation, Claimants continued to maintain the track
(including switches, culverts, grade crossings, etc.) in proper condition
and supervise those employes on their sections. There is no evidence in the
record that the work of the section crews on the additional track was not
performed generally in the fashion it was on the track owned before the
consolidations.
POSITION OF
THE BMWE
BMWE
contends that Claimants are entitled to an increased rate of pay
because the expansion of the section territories supervised constitutes a
"material change in work methods" as described in Appendix
F. BMWE
cites
the October 7, 1959 National Mediation Agreement in support of its position.
BMWE
recites meticulously the details of the expansion of territory for
which each Claimant is responsible but in the interests of brevity they are
not repeated here.
BMWE
maintains that the change in physical territory,
the work in which was supervised by Claimants, did "add workload, duties and
responsibilities to Claimants
...."
BMWE rejects BN's contention that
increased mechanization of the maintenance crews has reduced the work of
foremen and track inspectors, and
BMWE
argues by implication that the
mechanization is evidence of the increased duties on the part of those
employes. Similarly, BMWE contends that the expansion of section territory
adds to the duties and responsibilities of section foremen. Finally, BMWE
maintains that-it did not receive adequate notice, as provided in Appendix
F, of a situation requiring a discussion of a change in rate of pay.
POSITION OF CARRIER
BN contends that Claimants are not entitled to an increase in their
rate of pay because there has been no change in work methods that has
resulted in increased duties and responsibilities of Claimants. BN
maintains that Appendix F is not applicable and it also rejects BMWE's
argument that a procedural violation has occurred as to notice because if
Appendix F is not applicable, then no notice is required. Even if Appendix
F is applicable, the notice requirement does not become a factor unless a
pay adjustment is appropriate. Since BN contends here that the adjustment
was not appropriate, then, by extension, neither is the notice.
Further, BN contends that if Appendix F is applicable, BMWE has failed
to prove, pursuant to Appendix F, either the change in work method, the
increase in duties or the causal relation between the two. BN contends that
a mere expansion of the territory is not equated by Appendix F with a change
in work methods. BN points out that the work in question is the same work
that was performed prior to the consolidation and that the evidence proves
that the work continued to be performed in the same manner after the
consolidation.
Finally, BN maintains that expansion of territories has occurred in the
past and the establishment, abolishment and consolidation of sections, along
8
with the change of their headquarters and territories, have been accomplished "without any negotiations with the (BMWE] or any objections
thereto."
FINDINGS AND CONCLUSIONS
The question to be resolved is whether Claimants were properly denied a
rate adjustment based on the changes in the territories supervised; and if
so, what should the remedy be.
The record is clear that the territories supervised by Claimants have
been extended and now include more geographic area and generally more
track--and all its appurtenances--than they did in the period before these
consolidations began. This extension is examined in detail by BMWE, but it
is beyond question and readily admitted by BN. BN correctly contends that
the mere expansion of the territory supervised does not lead to the
conclusion that either the work method has changed or that the duties and
responsibilities have increased. These are separate issues and must be
proved to be causally related. And BMWE has the burden of showing both sets
of facts and their causal relation.
BMWE has been able to show, in a cloudy fashion, some increase in the
number of times that a given task might have to be performed by a given
section in its territory based simply on the expansion of geographic area in
the territories supervised by Claimants. This is logical as well. However,
this is not sufficient to prove a change in the work methods employed. The
9
record is quite clear that Claimants are still performing the same type of
work as they did prior to the section consolidations. The mechanics of
performing their work has not changed. The consolidation of personnel and
expansion of territories does not create a new technique for accomplishing a
task. The mere supervision of consolidated personnel and territories does
not demand that a different methodology be utilized for getting the job
done. Rather, as BN correctly contends, it allows for a more efficient
employment of resources.
BMWE's effort to construe the geographic expansion as a change in
duties and responsibilities is likewise without merit. The expansion of the
territories is not sufficient to prove an expansion of duties and responsibilities as intended in the Schedule Agreement. The Schedule Agreement
plainly requires not simply an increase in duties but a change in the
character or quality of the duties. There is insufficient evidence in the
record to support BMWE's contention that this has occurred. There is
repeated recitation in minute detail of the physical parts of the trackage
that Claimants are responsible for maintaining. But there is insufficient
proof that these are not the same parts and appurtenances of the trackage
for which Claimants were responsible prior to the section consolidations.
Moreover, Claimants are still doing the same type of work; and their work is
of the same character and quality as before, although they may be doing
their work more often or in more different places because of the extension
of their territorial boundaries. Performing a task more often does not turn
it into a different task.
10
As to the procedural issue raised by the BMWE regarding notice, there
is no defect in the notice received. The notice is required only where all
of the conditions are present that would require for a finding on the merits
favorable to BMWE. In the absence of those conditions, no notice is
required according to the Agreement.
AWARD
For the foregoing reasons, this Arbitrator finds that Claimants were
properly denied a rate adjustment and that these claims must therefore be
denied.
Nicholas H. Z
Chairman-and ral