PRIVATE ARBITRATION
BEFORE ARBITRATOR STEVEN M. BIERIG
The Grievance is sustained. The Carrier violated the Agreement when it allowed tie-plating work to be perlbrmed by non-bargaining unit employees at North Little Rock and subsequently allowed the installation of said ties on the UP North Territory. I find that the Febnurry 7" Agreement provides that Bargaining Unit work that is transferred from one location to another remains within the same ccafL In this case, the tic-plating work that was property tram from the UP North to the UP South Agreement was required to be perfornm;d by Organization-reptesemd employees and rot by an outside contractor.
Therefore, when the Carrier transferred the work of de-plating to non-bargaining unit employees arid said ties were subsequently installed on the UP North, it violated the Contract. To the extent that said violation is occurring, the Carrier is ordered to cease and desist from these actions immediately. In addition, the matter is remanded to the parties to fashion an appropriate remedy.
The Carrier's Statement of the Issue Is answered in the Negative. The Organization's First Statement of Issue is answered in the Affirmative. The Organization's Second Stanemert of Issue is answered in the Negative.
The Hearing in this matter was held on Monday, April 27, 2009 at the offices of the BMWED located at 150 S. Wacker Drive in Chicago, Illinois. The Hearing commenced at 9:00 a.m. before the undersigned Arbitrator who was duly appointed. by the parties to render a final and binding decision in this matter. At the Hearing, the parties were afforded a full opportunity to present such evidence and arguments as desired. No transcript of the Hearing was prepared although the Arbitrator did record the parties' presentation. Both parties argued their positions on the date of the Hearing, whereupon the Hearing was declared closed. Both parties stipulated at the Hearing to this Arbitrator's jurisdiction and authority to hear this case and issue a final and binding decision in this matter.
The Arbitrator, upon consideration of the entire record and all of the evidence, finds that the parties are Carrier and Employee within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by Agreement; this Board has jurisdiction over the dispute involved herein; and that the parties were given due notice of the Hearing held.
employees represented by BMWED in connection with track work performed on territory and in operations covered by the terms of the July 1, 2001 Agreement?
(2) Does the Carrier's transfer of tie plating work performed at its Laramie, Wyoming Plant that was covered by the BMWED-UP 2001 Agreement to a UP facility in North Little Rock to be performed by BMWED-represented forces covered by the BMWED-UP 2000 Agreement permit UP to install track ties that have been plated by persons other than BMWED-represented forces on territory and in operations covered by the 2001 Agreement when the 2001 Agreement expressly reserves such work to BMWED track sub-department forces?
The organizations recognize the right of the carriers to make technological, operational and organizational changes and in consideration of the protective benefits provided by this Agreement the carrier shall have the right to transfer work and/or transfer employees throughout the system which do not require the crossing of craft lines. The organizations signatory hereto shall enter into such implementing agreements with the carrier as may be necessary to provide for the transfer and use of employees and the allocation or rearrangement of forces made necessary by the contemplated change. One of the purposes of such implementing agreements shall be to provide a force adequate to meet the carrier's requirements.
Construction and maintenance of roadway and track, such as rail laying, tie renewals, ballasting, surfacing and lining track, fabrication of track panels, maintaining and renewing frogs, switches, railroad crossing, etc., repairing existing right of way fences, construction of new fences up to one continuous mile, ordinary individual repair or replacement of signs, mowing and cleaning right of way, loading, unloading, and handling of track material and other work incidental thereto will he performed by forces in the Track Subdepartment.
The instant Grievance was filed by the Brotherhood of Maintenance of Way Employes, a Division of the International Brotherhood of Teamsters ("BMW-ED" or the "Organization"). The Organization and the Union Pacific Railroad Carrier ("UP" or the "Carrier") are parties to the instant dispute. The instant Grievance relates to the Carrier's use of pre-plated railroad ties that were prepared by non-Organization employees.
The history of the dispute was discussed in Award No. 34, issued January 15, 2008, of the Special Board of Adjustment 1087, the Neutral Member of which was John LaRocco. In the late 1990s, the Carrier maintained two facilities where employees represented by the Organization manufactured and assembled track panels. One facility was located in Laramie, Wyoming on the UP North Territory, and the other facility was located in North Little Rock, Arkansas on the UP South Territory. For many years, Organization employees attached tie plates to ties as part of fabricating track panels at Laramie. At North Little Rock, a third party vendor, Nevada Railroad Materials, supplied the Carrier with pre-plated ties. It is clear that Nevada Railroad Materials was a contractor and its employees were not members of the Organization. Once Nevada Railroad Materials prepared the pre-plated ties, Organization members assembled the track panels using the pre plated ties.
entered into a settlement agreement dated October 31, 2006, in which the parties dismissed all lawsuits and submitted their respective disputes to SBA 1087.
Adjustment Board (NRAB) of its intent to submit a claim to the Third Division concerning the Carrier's use of Nevada Railroad Materials to perform the work of pre-plating ties in the vicinity of North Little Rock. The Organization claimed straight time and overtime pay for Organization employees as determined by the amount of time that the outside vendor spent manufacturing the pre-plated ties. After a series of various litigation maneuvers, on October 31, 2006, the parties entered into a Settlement Agreement in which the parties agreed that
they would submit the question to SBA 1087. This Arbitrator notes that SBA 1087'sjurisdiction is charged with the interpretation and application of the February 7, 1965 Job Stabilization Agreement, as amended.
Before Arbitrator LaRocco, the Organization took the position that SBA 1087 lacks jurisdiction to address the dispute because the February 7, 1965 Job Stabilization Agreement does not apply to determining the propriety of the Carrier's alleged transfer of scope-covered work from employees represented by the Organization to an outside contractor. The
Organization took the position that SBA 1087 does not have the authority to interpret the applicable scope rule and that the matter had already been resolved by Arbitrators Wallin and Fishgold. Conversely, the Carrier took the position that the February 7, 1965 Job
Stabilization Agreement permits the Carrier to transfer work throughout its system. Once the work leaves the jurisdiction of the UP North Agreement, the jurisdiction of the tie-
plating work becomes a question of interpretation of the UP South Agreement and no longer falls under the authority of SBA 1087. This is the crux of the instant dispute. The
Organization claims that even if work is transferred to the UP South Agreement under the February 7'd Agreement, it must still be performed by Organization Members. Conversely, the Carrier argues that once the work is transferred from the UP North to the UP South
the UP North Territory. According to the Organization, at all times relevant to this matter, the work of preparing pre-plated ties belonged exclusively to members of the Organization.
It is clear that the Organization does not dispute that, pursuant to Article III, Section 1 of the February 7`" Agreement, the Carrier has the right to transfer tie plating work from its Laramie facility under the UP North Agreement to its North Little Rock facility under the UP South Agreement. In addition, the Organization does not dispute that ties plated at the North Little Rock facility by Organization employees working under the UP South 2000 Agreement could then be used in connection with track maintenance and construction work on territory and operations covered by the UP North 2001 Agreement.
However, the Organization differs from the Carrier in that the Carrier contends that it is permissible to contract out the work transferred from the UP North to the UP South Agreement pursuant to the UP South Agreement. The Organization contends that the language of the February 7"' Agreement expressly provides that "...the carrier shall have the right to transfer work and/or transfer employees throughout this system which do not require the crossing of craft lines." The Organization vigorously maintains that the transferred work was required to be retained by members of the Organization.
The Carrier takes the position that as this is a contract interpretation case, the burden of proof falls to the Organization and the Organization cannot meet that burden. The Carrier asks that the Grievance be denied in its entirety.
The Carrier contends that pursuant to the February T° Agreement, it had the right to assign pre-plated tie work to non-bargaining unit employees after the work had been transferred from Laramie to North Little Rock. According to the Carrier, once the work was transferred from the UP North to the UP South Agreement, the language of the UP South Agreement is controlling and therefore, there was no obligation to continue using Organization employees to perform the tie-plating work.
According to the Carrier, Arbitrator LaRocco's Award held that the transfer of work pursuant to Article III of the February 7' Agreement removed the work from the scope of the original Agreement and placed it within the scope of the UP South Agreement. Award 34 held that the work was subject to the collective bargaining agreement to which it was transferred and that such work was no longer within the scope of the UP North Agreement. Therefore, the Carrier contends that it is not a violation of the UP North Agreement when work is performed pursuant to the provisions of the agreement to which the work is transferred, i.e., the UP South Agreement. Once the work was transferred, the original collective bargaining agreement, the UP North Agreement, has no applicability.
Finally, the Carrier contends that the logical implications of Award 34 provide that the UP North Agreement has no control over the finished product that is returned to the territory of the UP North Agreement. Once the work is divested of the UP North jurisdiction, the UP North Agreement has no jurisdiction over the finished product when it is returned to the UP North Territory. According to the Carrier, the imposition of such a requirement would thwart the very purpose for which the Carrier entered into the February '1"' Agreement.
After a complete and thorough review of all the evidence and arguments presented in this case, I find that I must sustain the Grievance. I find that the February T" Agreement intended that transferred Bargaining Unit work would remain within the Bargaining Unit of that craft. In this case, it is uncontested that tie-plating work was properly transferred from the UP North to the UP South Agreement. I find that subsequent to the transfer, the work was required to be performed by Organization-represented employees and not by an outside contractor.
Therefore, when the Carrier used non-bargaining unit employees to perform this work, it violated the Contract. To the extent that said violation is occurring, the Carrier is ordered to cease and desist from these actions immediately. The matter is remanded to the parties to fashion an appropriate remedy.
The instant Grievance relates to the Carrier's use of pre-plated railroad ties that were prepared by non-Organization employees. In the late 1990s, the Carrier maintained two facilities where employees represented by the Organization manufactured and assembled track panels. These facilities were in Laramie, Wyoming on the UP North Territory, and North Little Rock, Arkansas on the UP South Territory. For many years, Organization employees attached tie plates to ties as part of fabricating track panels at Laramie. At North
It is clear to this Arbitrator that the Carrier, pursuant to the February 7°' Agreement, has the right to transfer work from the jurisdiction of one Agreement to another. That is in fact what occurred in the instant case when the tie plating work was transferred from the UP North to the UP South Agreement. It is clear to this Arbitrator that the parties agreed that such work could be transferred to take advantage of efficiencies of scale and other technological advances.
However, the transfer of work from one jurisdiction to another raises the question of whether such work must continue to be performed by Bargaining Unit employees or whether such work is wholly transferred to rules and regulations of the subsequent jurisdiction. In this case, the resulting product of the transferred work was returned to the original
jurisdiction, raising the question of whether the work of tie-plating, once transferred from the UP North to the UP South Agreement, the product of which was ultimately installed within UP North jurisdiction, could be considered completely within the jurisdiction of the UP South Agreement and thus manufactured by non-bargaining unit employs.
After a review of all the facts and circumstances in this case, I find that I must agree with the Organization. The language of the February r Agreement states in clear and unequivocal language that, "The organizations recognize the right of the carriers to make technological, operational and organizational changes and in consideration of the protective beenefsis provided by this Agrwrnent the carrier shall hair the right to transfer work and/or transfer employees throughout the system which do not reqsdro the crc6sing of craft lines . ..." (emphasis added). It is clear to this Arbitrator that the work of tie-plating, once transferred from the UP North to the UP South Agreement, could be performed by employees covered under the UP South Agreement, only as long as the work stayed within the Bargaining Unit. Thus, any work performed by Organization employees on the UP North Anent, due to its transfer and ultimate return to the UP North jurisdiction, could be performed only by UP South employees that were within the BMWED craft.
When the words of an agreement are clear and unambiguous, there is no need to resort to technical rules of interpretation. "...Mf the words are plain and clear, conveying a distinct idea, there is no occasion to resort to interpretation, and their meaning is to be derived entirely from the nature of the language used." Elkouri, How Arbitration Wonts. (BNA Books) 6'a Ed. at p. 434. 1 believe that pursuant to the February 77' Agreement, the parties' intention is clear and unambiguous that while work could be transferred from the UP North to the UP South, it could not cross craft lines. Those craft lines were clearly violated in the instant case.
The Carrier has attempted to use the LaRocco Award to obtain a benefit, the use of non-bargaining unit employees, that I cannot find that the parties intended based on the plain language of their Agreement. After a complete and thorough review of all the evidence and arguments presented in this case, I find that I must sustain the Grievance. I find that the February 7d' Agreement mandates that transferred Bargaining Unit work must remain within the craft. In this case, the tie-plating work was properly transferred from the UP North to the UP South Agreement. However, because the resulting product was ultimately installed on the UP North Territory, the work was required to be performed by Organization-represented employees and not by an outside contractor.
Therefore, when the Carrier used non-bargaining unit employees to perform this work, it violated the Contract. To the extent that said violation is occurring, the Carrier is ordered to cease and desist from these actions immediately. In addition, I am remanding the matter to the parties to fashion an appropriate remedy.
The Grievance is sustained. The Carrier violated the Agreement when it allowed tieplating work to be performed by non-bargaining unit employees at North Little Rock and subsequen allowed the installation of said ties on the UP North Territory. I find that the February 71 Agreement provides that Bargaining Unit work that is transferred from one location to another remains within the same craft. In this case, the tie-plating work that was properly transferred from the UP North to the UP South Agreement was required to be performed by Organization-represented employees and not by an outside contractor.
Therome, when the Carrier transferred the work of tie-plating to nonbargaining unit employees and said ties were subsequently installed on the UP North, it violated the Contract. To the extent that said violation is occurring, the Carrier is ordered to cease and desist from these actions immediately. In addition, the matter is remanded to the parties to fashion an appropriate remedy.
The Carrier's Statement of the Issue is answered in the Negative. The Organization's First Statement of Issue is answered in the Affirmative. The Organization's Second Statement of Issue is answered in the Negative.
CARRIER MEMBER DISSENT TO PRIVATE ARBITRATION
DATED DECEMBER 22, 2009 BEFORE REFEREE STEVEN BIEREG
The issues presented to this Board are inextricably connected to and should be governed by the holdings of Referee John LaRocco in Special Board of Adjustment No. 1087 Award 34. This Board however has ignored those holdings and consequently has not resolved the issues put before it.
In rendering its decision, the Board accepted BMWED's argument that it did not have jurisdiction to interpret the respective scope rules of the collective bargaining agreement recognizing that it had exclusive jurisdiction to interpret the February 7
Agreement. ft therefore restricted its decision to the application of the February 7th Agreement. In so doing the board held that the work was properly transferred from the scope of the UP North Agreement to the UP South Agreement (page 12). It further held that it was transferred to members of the BMWED craft (page 14). If finally held that once the work was transferred from the jurisdiction of the UP North agreement to the jurisdiction of the UP South agreement, the application of the February 7'" Agreement ceased to apply and all other issues had to be resolved through an interpretation of the respective collective bargaining agreements (page 14). It declined to answer those
questions even though the parties had agreed to place them before this Board with the authority to answer the questions.
Because SBA 1087 failed to answer the final questions involved, the matter was not resolved. The dispute again arose and was presented to this Board to answer the remaining questions. The questions presented to this Board are as follows:
In rendering its decision, this Board held: "I find that the February 7t" Agreement mandates that transferred Bargaining Unit work must remain within the craft." Such a conclusion is in clear contradiction to the LaRocco award, which held that once the work was transferred, it fell within the jurisdiction of that agreement and any further interpretations must be governed by the scope rules of the respective collective bargaining agreements. This Board rendered its decision notwithstanding the fact that it recognized that "Mhis Arbitrator notes that SBA 1087's jurisdiction is charged with the interpretation and application of the February 7, 1965 Job Stabilization Agreement, as amended."
This Board clearly has exceeded its jurisdiction and in so doing has failed to resolve the very issue the parties had placed before it. The issue before this Board was not whether the February 7t" Agreement restricted the Carrier's rights under the 2000
South Agreement. SBA 1087 already had interpreted the February 7t' Agreement pursuant to its express and exclusive jurisdiction, and it aptly pointed out that the remaining issue required interpretation of the CBA provisions and not the February 7t" Agreement Unfortunately, the decision here is based entirely on the majority's interpretation of the February 7t" Agreement, a matter reserved to SBA 1087, and the decision fails to interpret the CBA provisions as was the Board's charge.
As a result, we now have an award from SBA 1087 holding that the February 7'" Agreement has no further application once the work is proprly transferred and this contrary award which purports to extend the February 7 Agreement beyond the bounds set by SBA 1087. Since SBA 1087 has sole jurisdiction to interpret the February r Agreement, and because this Board has usurped the jurisdiction of SBA 1087 and contradicted the holdings of that Board, this award exceeds the Board's jurisdiction and is of no force and effect.
LABOR MEMBER'S RESPONSE
TO CARRIER MEMBER'S DISSENT
TO
TIE PLATING AWARD
(Referee Bierig)
After ten years, four awards and three trips to the federal courts, nothing the Carrier Member says or does in connection with this dispute should come as a surprise. Indeed, a dissent from the Carrier Member came as no surprise because the Carrier Member dissented to each and every one of the trio of carefully reasoned awards that were previously rendered in connection with this long running dispute (i.e., the Wallin, Fishgold and LaRocco Awards). However, I admit to being dumfounded by the substance of the dissent in this case. The Carrier Member's assertion that the Board exceeded its jurisdiction in this case by interpreting the Feb 7t'Agreement is obviously wrong as demonstrated by a simple reading of the arbitration agreement that established this Board and defined its jurisdiction.
Likewise, the Carrier Member is just as obviously wrong when he asserts that: (1) this Board supposedly failed to answer each of the questions put before it; and (2) this Board's award is somehow in conflict with Award No. 34 of SBA 1087. Contrary thereto, a simple reading of this Board's award and Award No. 34 of SBA 1087 establishes that this Board definitively answered each of the questions put before it and provided cogent reasoning to support each of those answers and that there is no conflict between these awards.
The Carrier Member's assertion that this Board exceeded its jurisdiction by interpreting the Feb 7" Agreement is patently frivolous. The first paragraph of the agreement that established this Board and defined its jurisdiction plainly states:
The Questions identified in Attachment "A" clearly reference the Feb 7" Agreement. The Carrier's statement of the Question at Issue specifically references, "Article III Section I of the February 7" Agreement" and the Union's statement of the Questions at Issue refer to, "... the Carrier's transfer of tie plating work ....", a transfer that was done pursuant to the Feb 7`" Agreement. Hence, the plain language of the arbitration agreement that established this Board clearly granted the Board the jurisdiction to interpret the Feb 7`" Agreement.
In addition to the plain language of the arbitration agreement, it should be noted that the Carrier opened its submission with the heading "PERTINENT CONTRACT LANGUAGE" and under that heading it not only cited, but quoted, the text of Article III Section I of the Feb 7" Agreement. The Carrier continued on to cite the Feb 7`" Agreement no less than nine times in its 10 page submission. And then, at Page 7 of its submission, the Carrier told the Board that the issue to be decided was as follows:
The Carrier plainly told the Board that it "must decide" the impact that the Feb 7" Agreement had on its collective bargaining agreements. Consequently, for the Carrier to now complain that the Board exceeded its jurisdiction when it interpreted the Feb 7`" Agreement is not only contrary to the plain language of the arbitration agreement, but also contrary to the position the Carrier asserted in its submission.
Finally, it should be noted that nothing in this Board's award does anything to undermine the ongoing jurisdiction of SBA 1087 to interpret and apply the Feb 7`" Agreement in the future. In the dissent to Award No. 34 of SBA 1087, the Carrier Members complained that the tie plating dispute was a hybrid dispute that required an interpretation of both schedule rules (Rule 9 of the UP Agreement) and the JSA (Feb 7" Agreement). Specifically, the Carrier Members stated it thusly:
The Carrier Members clearly recognized that the tie plating dispute was a hybrid dispute that involved the interplay of Rule 9 of the UP Agreement and the Feb 7`" Agreement and that this interplay created a jurisdictional "Catch 22". The only way to overcome that jurisdictional Catch 22 was to establish a Board with jurisdiction to interpret and apply all of the relevant contract terms, including Rule 9 and the Feb 7`" Agreement. That is precisely what the parties did when they established the Bierig Board. Moreover, it is clear that the parties knew they were establishing a hybrid Board with broad jurisdiction because they expressly provided in Paragraph 9 of the arbitration agreement that, " f t]he resolution of this dispute is without prejudice or precedent to the parties' respective position as to the appropriate forum to resolve similar disputes." Thus, nothing
in this Board's award does anything to undermine the jurisdiction of SBA 1087 to interpret and apply the Feb 7`" Agreement in future disputes over the application of that agreement.
I am particularly baffled by the Carrier Member's repeated assertions that the Board failed to resolve the issues put before it (Dissent at Pages 1, 2 and 3). The Carrier submitted one question to the Board and the Union submitted two questions. The Board not only answered each of those questions with a definitive "Negative" or "Affirmative" answer, but also provided cogent reasoning to support each of those answers. It is clear that the Board resolved all issues within its jurisdiction and the Carrier Member's assertions to the contrary are definitively refuted by simply reading the award.
Just as he did with respect to the Wallin and Fishgold Awards, the Carrier Member asserts that the Bierig Award is in conflict with prior precedent. More specifically, at Page 2 of his dissent, the Carrier Member asserts:
There are at least three problems with the Carrier Member's assertion. First, it is founded on a false premise. Indeed, the Carrier's entire case is built upon an intellectual sleight of hand that just does not stand up to the light of reason. Both the black letter and spirit of the Feb 7`" Agreement prohibit the transfer of work beyond craft lines. Consequently, any tie plating work performed by an outside contractor could not possibly have been "transferred" pursuant to the Feb 7'h Agreement.
Second, the LaRocco Board was not only assailed with jurisdictional protests from both parties, but had before it limited facts with respect to the nature of the outside contracting transaction (LaRocco Award at PP.13-15). In light of those limitations, the LaRocco Board issued an award that, "... only narrowly and partially answer[ed] the issues the parties submitted." (LaRocco Award at P.14). In contrast, the Bierig Board had no such jurisdictional limitations and was fully informed as to the facts. With its broad jurisdiction, the Bierig Board fully resolved the dispute and finally brought an end to the jurisdictional shell game that the Carrier had been playing with the courts and arbitrators for nearly a decade.
Finally, it is clear that the Bierig Board carefully considered the LaRocco Award and took it into account in fashioning its award. This is clear from Page 20 of the Bierig Award where Arbitrator Bierig expressly states, "[tlhe Carrier has attempted to use the LaRocco Award to obtain a benefit, the use of non-bargaining unit employees, that I cannot find that the parties intended based on the plain language of their Agreement." The fact that Arbitrator Bierig interpreted the LaRocco Award differently than the Carrier does not mean that the LaRocco Award is in conflict with the Bierig Award. Rather, with its broad jurisdiction and full knowledge of the facts, the Bierig Board was able to finally and completely resolve the dispute which the LaRocco Board could only address "narrowly and partially".
In summary, the Bierig Board properly exercised the broad jurisdiction the parties granted to it to render a well-reasoned and fully informed opinion based on clear contract language and hornbook principles of contract construction. Pursuant to Paragraph 9 of the parties' arbitration agreement, the Bierig Award is "final and binding on the parties" and should bring a definitive end to this long running dispute. Moreover, since the precedential value of an award is proportionate to the clarity of reasoning in the award, the Bierig Award will carry powerful precedential value in future cases involving analogous circumstances on other carriers.