PUBLIC LAW
BO.hRD N~
CASE NO. 8
PARTIES Brotherhood of Maintenance of Way Employes
To THE
DISPUTE:
and
Union Pacific Railroad Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when outside forces
used to re-roof the Maintenance-of--Way Shops Building
at Pocatello, Idaho September 16 through November 8,
1985.
2. Because of the aforesaid violation, Carpenters A
S. Kunz,
C. L. Haris, D. K. Naasz, H. L. Christiansen,
R. E. Baker,
G.
v. Cuthbert and T. D. stalder shall
each be allowed two hundred sixty-three and one half
(263-1/Z) hours of pay at their respective rates.
OPINION OF TEE BOARD:
At the time this claim arose, the Claimants held
seniority and were regularly assigned as Bridge and Building
Department carpenters on the carrier's Idaho Division. On April
16, 19-85, the carrier notified the organization's General
chairman that the Carrier intended to replace the roof of its
Maintenance o£ Way Shop at Pocatello, Idaho, and would be
soliciting bids from contractors to install a new roof of twoinch foam insulation topped by certain "V'ersigard" roofing
material manufactured by Goodyear Rubber Co. In connection with
this project, the Carrier intended to use its Maintenance of Way
forces to remove existing wood decking, sky lights and asphalt
roofing material, and to install new
wood
decking, exhaust fans,
gutters and downspouts. The only portion of the job to be
P.L.B. 4219
Award No.
Case No. 8
contracted to outside forces was installation of the new roofing
material and insulation.
on April 22, 1985, the Organization's General Chairman
responded to the Carrier's notice, indicating that he believed
there were Maintenance of Way Employes capable of some of the
work, and suggesting that the Parties discuss the matter in
conference. The Carrier replied on May 2, 1985, expressing its
willingness to address
the matter
in conference.
The organization did not docket the matter of the proposed
roofing contract until the Parties' conference on September 12
and 13, 1985. During that conference, the Carrier repeated that
Maintenance of Way personnel would perform substantial portions
of the re-roofing job. The Carrier stated that application of
the new roofing material was to be done by an outside roofing
contractor in order to obtain Goodyear's ten-year warranty on the
Versigard product. According to the Carrier, that warranty was
available only if the Versigard roof membrane was installed by an
authorized contractor.
The re-roofing project began on September 16, 1985 and was
completed by November 8, 1985. The installation of the Versigard
roof system was contracted to and performed by Pocatello Roofing
Company, thereby securing Goodyear's ten-year warranty. The
contractor utilized a crew of five.
2
P.L.H. 4219
Award No.
Case No. 8
On November 18, 1985, the organization filed this claim,
alleging that the Carrier had violated various rules of the
Agreement as well as a letter of understanding between the
Parties. The claim was handled on the property in the usual
manner, and eventually progressed to the Third Division of the -
National Railroad Adjustment Board (NRAB)_ However, after the
claim had been pending at the NRAB for one year, the Carrier
exercised its statutory prerogative to have the claim withdrawn
and assigned to this Public Law Board. That was done
in ,7une
1989. The Parties have filed supplemental submissions with this
Board and have presented their arguments orally.
The organization first argues that the work of re-roofing
buildings on the Carrier's property is reserved to Maintenance of _
Way Employes by express provisions of the Agreement. Rule 1 of
the Agreement provides:
RULE 1. SCOPE
This agreement will govern the wages and working
conditions of employes in the Maintenance of way and
Structures Department listed in Rule 4 represented by
the Brotherhood of Maintenance of way Employes
Organization.
Rule 4 of the Agreement, referred to in Rule 1, sets forth the
seniority groups of employees by position within the various
Maintenance of Way subdapartments. Rule 4 does riot, however,
describe the work reserved to each group or position.
P.L.B. 4219
Award No.
Case No.
8
However, the Organization also refers to Rule
8
of-the
Agreement Which provides:
RULE 8.
BRIDGE AND BUILDING SUBDEPARTMENT
The work of construction, maintenance and repair
of buildings, bridges, tunnels, wharves, docks, nonportable car buildings, and other structures,
turntables, platforms, walks, snow and sand fences,
signs and similar structures as well as all
appurtenances thereto, and other work generally so
recognized shall be performed by employes in the Bridge
and Building Subdepartment.
According to the organization, the re-roofing project at
Pocatello constituted the "maintenance [or] repair
of
[a]
building" and, therefore, Rule
8
explicitly reserved the.work to
employees of the Carrier's B & B Subdepartment.
The Organization further contends that, even if the
Agreement did not expressly reserve re-roofing
work
to B & B
employees, the facts developed on the property show that such
work traditionally has been performed by those employees. When
it first filed the claim, the Organization asserted that, during
the previous year (1984), B & B employees had installed the same
Versigard roofing material on the Carrier's crew Dispatchers
Building at Pocatello. Throughout the processing of the claim,
the organization repeatedly reiterated that contention without
refutation by the Carrier.
The organization next argues that, since both the Agreement
and the Parties' past practice reserve roof repair work to 8
& B
4
P.L.B. 4219
Award No.
Case No. 8
employees, the Carrier violated the Agreement by vontracting that
work in this case. Rule 52 of the Agreement provides-
RULE 52. CONTRACTING
(a) By agreement between the Company and the
General Chairman work customarily performed by employee
covered under this Agreement may be let to contractors
and be performed by contractors' farces. However, such
work may only be contracted provided that special
skills not possessed by the Company's employee, special
equipment not owned by the Company, or special material
available only when applied or installed through
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. In the
event the Company plans to contract out work because of
one of the criteria described herein, it shall notify
the General, Chairman of the Organization in writing as
tar in advance of the date of the contracting
transaction as is practicable and in any event not less
than fifteen (15) days prior thereto, except in
"emergency time requirements" cases. If the General
Chairman, or his representative, requests a
meeting to
discuss matters rebating to the said contracting
transaction, the designated representative of the
Company shall promptly meet with him for that purpose.
Said company and Organization representative shall make
a good. faith attempt to reach an understanding
concerning said contracting but if no understanding is
reached the Company may nevertheless proceed with said
contracting, and the Organization may file and progress
claims in connection therewith.
(b) Nothing contained in this rule shall affect
prior and existing rights and practices of either party
in connection with contracting out. Its purpose is to
require the Carrier to give advance notice and if
requested, to meet with the General Chairman oz his
representative to discuss and if possible reach an
understanding in connection therewith.
(d) Nothing contained in this rule shall impair
5
P.L.B. 4219
Award No.
Case No. 8
the Company's right to assign work not customarily
performed by employes covered by this Agreement to
outside contractors. '
The Organization points out that, even though the Carrier gave
advance notice of its contracting plans in this case, and even
though the Parties met to discuss their differences, the
organization did not assent or reach an understanding with the
Carrier as contemplated in Rule 52.
On the property, the carrier responded to the organization's
claim by arguing that Rule 52 was satisfied in this case. The
Carrier stated that it had given ample notice of its intentions
but the Organization had been dilatory in scheduling a
conference. The Carrier also pointed out that it assigned much
of the re-roofing project to B & B employees and contracted only
that portion which had to he done by an authorized roofing
contractor in order to secure the Goodyear warranty. According
to the Carrier, this situation fell- within the provisions of Rule
52 which authorize contracting when necessary to obtain "special
material available only when applied or installed through
supplier."
The Organization disputes the Carrier's interpretations of
Rule 52. First, the Organization asserts that it did not delay
unreasonably in protesting the Carrier's announced plans. The -
Organization replied promptly to the carrier's notice and
expressed its concerns. The record is not clear regarding when
6
p. L. B. 4219
Award No.
Case No. 8
the contract was awarded, but the organization docketed the
matter for conference before the contract work was performed. On
this record, the Board cannot find that the organization acted so
tardily as to be barred from challenging the contracting. The
Gamier has not shown how it was prejudiced by the Organization's
failure to schedule the matter for conference earlier.
Furthermore, the Board agrees with the organization that
Rule 52 does not authorize contracting in this situation. The
Carrier concedes that the Versigard roofing material was
available for purchase regardless of whether it was to be applied
by the supplier, a contractor, or the GarrierTs own forces. The
only thing not available, unless an authorized contractor was
used, was the manufacturer's warranty. However, Rule 52 does not
authorize contrasting merely to ensure the applicability of a
manufacturer's warranty. The Rule has only three specific
exceptions. The exception for "special material" applies only
when that material is completely unavailable unless applied by or
through the supplier. That was not the case here. The Board may
not add a fourth exception to the Rule or expand an existing one
beyond its wording, even if to do so might be appealing.
Revising the language of the Agreement is for the Parties to do
in negotiations, if they era so inclined.
However, the Gamier also argues that the work of installing
new roofing material was not work reserved to employees covered
7
P.L.B. 4219
Award No.
Case No. 8
by the Agreement in the first place. The Carrier insists that
the Scope clause in the Agreement is a general one. Therefore,
the Carrier contends, the organization must first establish its
right to the work before it may complain that the work improperly
has been contracted to others in this case-1 Furthermore, the
carrier argues that the organization can establish its right to
the work only by proving that Maintenance of Way Employes
traditionally
have
performed ," such work svsten-wide.
The Parties have cited conflicting authority as to whether
the Scope rule in the Agreement is a general one as opposed to a
specific "position and work" rule- obviously Rule 1, standing
alone, is a "general" scope rule. It does not even undertake to
define what work is reserved to members of the organization. it
refers to Rule 4, which lists the various positions encompassed
by the Agreement and divides them into seniority groups, but Rule
1 The Organization complains that the Carrier has
"sandbagged" it by raising this issue at the last moment. In
correspondence on the property, the carrier did not dispute the
organization's right to the work. In fact, the carrier did not
raise the issue until after the claim was presented to this
Board. on
the property, the Carrier simply argued that Rule 52
had been satisfied. '
However, where the organization complains of the =
contracting of work, it must as a threshold matter establish that
it owns the work in question. If the Agreement does not
explicitly give it the work, the Organization must show that it
owns the work by past practice. Until the Organization has made
such a showing, the Carrier is not obliged to present evidence to
the contrary. Therefore, we do not find that the Organization
was improperly "sandbagged" in this case.
8
P.L.B. 4219
Award No.
Case N6. 8
4 similarly fails to define the work reserved to those positions.
To fill this gap the organization invokes Rule 8,' which
classifies the duties allocated to the Bridge and Building
Subdepartment. However, Rule 8 does not guarantee certain work
to the organization. Instead, its purpose is merely to describe
what portion of the work belonging to the organization is to be
allocated to B & B forces. If the work described in Rule 8 is
not otherwise reserved to the organization, Rule 8 has no effect.
Therefore, since the Agreement itself does not guarantee
roof repair and replacement work to the Organization's members,
the organization must establish that it has acquired the right to
such work by past practice.
The organization argues that it need not satisfy the
"exclusivity doctrine" in a case like this. It contends that the
"exclusivity doctrine" applies only in cases questioning whether
certain work was assigned to employees of the wrong organization,
i.e., in "jurisdictional" disputes. Indeed, as the organization
has noted, there is arbitral
precedent for
the view that the
"exclusivity doctrine" applies only in such cases and not in
contracting cases. However, the better and more widely accepted
view is that the doctrine applies in both settings.2 otherwise,
2 The Agreement makes
that
conclusion
particularly
compelling in this case. Paragraphs (b) and (d) of Rule 52 take
pains to emphasize that the rule does not impair the Carrier's
ability to contract work that has not customarily been performed
by the employees represented by the Organization.
9
P.L.B. 4219
Award No.
Case No. 8
it would be theoretically possible for the organization to
prevail on a claim that the Carrier improperly awarded certain
work to a contractor, even though the organization could not have
prevailed if the same work had been given to employees of another
organization. indeed, it would be possible for the organization
to prevail on a claim of improper contracting even though another
organization possessed a superior claim to the work. There is
simply no reason grounded in the Agreement why such a result
should obtain.3 Proving such ownership of work has
traditionally required satisfaction of the "exclusivity
doctrine." see, P.L.B. 4070, Award No. (Case
No., 4) (1990).
The organization's claim that its forces performed such work
in
1984
on another building at Pocatello, even though undisputed,
is not enough. That fact hardly negates the possibility that
other forces, including contractors, have frequently done such
3
The Organization argues that the "exclusivity doctrine"
represents bad policy because it discourages the organization
from permitting the Carrier to contract work even when such
permission should be given. According to the organization, if
the "exclusivity doctrine" applies, the General Chairman can
never agree to even a single instance
of
contracting, because it
would mean that the organization could never again prove
"exclusivity." However, the organization overstates the case.
That the organization has specifically authorized the Carrier to
contract work on a few occasions would not defeat the
organization's
assertion of
exclusive ownership of that work. To
the contrary, it would suggest the parties' consensus that the
work otherwise belongs to the organization.
10
P.L.S. 4219
Award No.
Case No. 8
work also. For all the record shows, the re-roofing of the Crew
Dispatchers building in 1984 may have been an aberration. In
order to prevail in this claim, the Organization is required to
negate that possibility. The organization bore the burden of
presenting evidence o£ a system--wide pattern of using Maintenance
of Way personnel to perform all roof repairs on the property.
Because the Organization did not do so, the claim must be denied.
AWARD
Claim denied. -
_._.-~ a am ~'
mont E. Stallworth, Neutral Member
C. F. Foose, Organization Member R. D. Rock, Carrier Member
Dated this
~9
day of , 1990.-
11
~i~-n -a
LA13OR MEMBER'S
DISSENT
TO
CASE 8 - PUBLIC LAW BOARD N0. 4219
(Referee Stallworth)
One school of thought adhered to by certain railroad industry
advocates is that writing dissents is an exercise of futility
because they are neither read nor considered by subsequent
arbitrators. This Organization does not belong to that school.
For, to accept the theory that dissents are meaningless, is to
accept the theory that reason does not prevail in railroad industry
arbitration. Despite all the faults built into this system, the
Organization is not ready to conclude that reason has become
meaningless. Therefore, the Organization must respectfully but
emphatically dissent to this award.
This dissent has two central themes: (1) the Board exceeded
its jurisdiction by deciding the case on a new issue ("exclusivity") which was not properly before it and (2) the Board's ruling on
the exclusivity issue (even if it had properly been before it) was
contrary to the rules in the collective bargaining agreement,
contrary to precedent on this property and contrary to the
consensus of well-reasoned awards on this issue.
In order to fully understand how wrong this award is, it is
first necessary to understand the procedural history of this case.
- 1 -
~l~iq_8
ON PROPERTY HANDLING
The initial claim was filed on November 18, 1985 and progressed through a three-step grievance procedure culminating with
an appeal to and denial by the Carrier's highest officer designated
to handle such matters (former Director of Labor Relations E. R.
Meyers). At each and every stage of the claim handling procedure,
the Organization stated in clear unambiguous language that the work
was reserved to B&B employes by Rule 8 and that the work had
"customarily and traditionally been assigned to and performed by
the employees of the Bridge and Building Subdepartment". The
Carrier NEVER, NOT EVEN ONCE, denied, contested or disputed the
Organization's statements that the work was reserved not only by
clear rules, but also custom and practice.' Of course, it is a
hornbook principle of arbitration that undenied statements must be
accepted as fact. This principle has even stronger application in
the railroad industry where the arbitrator plays an appellate role
rather than hearing de novo argument. As shall become apparent,
the violation of this hornbook principle was the Board's first
error.
'During the handling on the property, the Carrier simply did
not contest that roofing work was within the Scope of the Agreement
and customarily performed by BMWE employes. Instead, it relied
upon a "special material" exception in Rule 52 based upon the fact
that the contractor would warranty the work for ten years if his
employes applied the materials.
PROGRESSION TO NRAB
On February 4, 1987, the BMWE listed the dispute with the
NRAB. In accordance with NRAB Circular No. 1, literally hundreds
of awards, sound public policy and basic principles of fairness,
the listing of the case at the NRAB effectively closed the record
in this case.
Following the listing of the case, submissions and rebuttal
submissions were exchanged in the normal manner. In its submission, the Carrier, for the first time in the history of the case,
made a passing reference to "exclusivity" but did so only to the
extent that it contended the Organization had not presented
evidence that BMWE forces had exclusively applied "Versigard", the
warranted roofing material.' However, the Carrier's position
remained grounded on the "special material" argument as was made
clear in the "SUMMARY OF CARRIER'S POSITION" at Page 15 of its
submission, which reads:
"SUMMARY OF CARRIER'S POSITION:
Throughout the submission, the Carrier has clearly
shown that:
1. The Organization's failure to conference
the advance notice in a timely manner
allowed the Carrier to proceed with the
contracting.
2. Rule 52 allows the Carrier to contract in
order to obtain special material avail-
ZOf course, the Organization had never presented such evidence
because scope coverage of the work had never been challenged on the
property.
"able only when applied or -installed
through a supplier.
3. The Claimants suffered no monetary loss
and, therefore, are not entitled to compensation.
The Carrier requests a denial award."
Subsequent to the exchange of submissions, the case was
deadlocked by the NRAB. On November 9, 1988, the case was
scheduled to be heard before a referee on June 22, 1989. On May
16, 1989, little more than a month before the hearing date, the
Carrier exercised its statutory right to withdraw the case from the
NRAB for handling on a Public Law Board. The case was subsequently
listed on Public Law Board No. 4219.
PUBLIC LAW BOARD HANDLING
Despite the fact that the case would have been heard at the
NRAB on June 22, 1989, it languished before Public Law Board No.
4219 for nearly nine months before it was scheduled to be heard on
February 20, 1990. On February 13, 1990, four working days before
the hearing, the Organization received a 39 page "Supplemental
Brief" from the Carrier, wherein the Carrier: (1) raised four major
new issues, including exclusivity and (2) presented new evidence in
the form of numerous new documents never before seen by the
Organization. In essence, the Carrier was attempting to change the
entire character of the dispute more than four years after the
dispute arose and only four days before the arbitration hearing.
THE ARBITRATOR EXCEEDED HIS ADTHOR TY BY CO DER NG HEN ISSN
During the handling on the property, the Carrier never
disputed the fact that roofing work was reserved to BMWE forces by
the collective bargaining agreement, nor did it raise the so-called
"exclusivity test". Circular No. 1 and literally thousands of NRAB
awards thereby precluded the Carrier from raising those issues
after the Organization filed its letter of intent with the NRAB.
This prohibition on raising or considering new issues extends to
cases later withdrawn from the NRAB not only by force of logic, but
also by award precedent.
When Congress amended the Railway Labor Act to provide for the
establishment of Public Law Boards, its obvious intent was to
expedite handling of backlogged cases. There was no intent stated,
nor can it logically be implied that Congress ever intended that
cases could be withdrawn from the NRAB to circumvent Circular No.
1. Withdrawing cases for the purpose of supplementing the record
not only violates basic tenets of fairness, but is also contrary to
sound public policy. When a case is progressed through the
administrative machinery of the NRAB only to be withdrawn at the
eleventh hour, public funds are needlessly wasted.
Moreover, the application of Circular No. 1 prohibitions on
new evidence to cases that have been withdrawn from the NRAB for
handling on a Public Law Board has clearly been recognized by
previous awards. See Public Law Board No. 3943 - Award 1, which
held:
"On May 18, 1983 a pay claim was filed by the
Organization's Division Chairman, Albuquerque for
Claimant H.W. Wittman. The claim alleged violation of
the operant Agreement on March 24, 1983 when the Carrier
'...required and/or permitted an employee not covered by
the Agreement to handle a train order at an office of
communication where an employee covered by the Agreement
is assigned and available when no emergency existed...'.
* * *
On May 31, 1984 the Organization notified the Third
Division of the National Railroad Adjustment Board of its
intention to file an
ex
ar a submission on the dispute
involving claims by the three Claimants stated in the
foregoing. The case was docketed as CL-25829 before the
Third Division. At the request of the Carrier the case
was withdrawn from the National Railroad Adjustment
Board.
On September 3, 1985 an Agreement was signed between
the General Chairman of the Organization and the Carrier's Vice President of Personnel and Labor Relations
where it was agreed, in accordance with the provisions of
Public Law 89-456, to set up a Public Law Board to
adjudicate the matter formerly docketed as CL-25829
before the National Railroad Adjustment Board.
* * *
The record before the Board on this case is fairly
voluminous and, at points, considerably complex. The
Board has studied closely both the exchanges on property,
and the submissions by the parties to this Board. The
Board notes, at points, information and arguments found
in one or the other submission which adds to or augments
that which is contained in the exchanges of record. The
parties are, therefore, advised as a preliminary point
that, in accordance with Circular No. 1 and the articulation of the doctrine therein by many subsequent Awards
from the National Railroad Adjustment Board, information
which is not part of the record per
se
cannot be utilized
when formulating conclusions in this case (Third Division
20841, 21463, 22054; Fourth Division 4132, 4136, 4137).
The positions of the parties outlined in that part of
this Award which immediately follows, therefore, will at
all times be consistent with those arguments proffered by
the parties when the claims to this case were being
handled on the property. ***"
In addition to violating Circular No. 1 and long-standing
practice in the railroad industry, the Carrier's Supplemental Brief
Yatg
-Y
violated the terms of the Public Law Board Agreement. Paragraph
(e) of said Agreement clearly stipulates that:
11(e) At a mutually agreeable date prior to the
hearing, but in no event later than 15 days prior
thereto, the parties shall exchange two copies of their
respective written submissions containing an ex parte
statement of facts, supporting evidence and argument of
its positions, and at the same time furnish copy to the
Neutral Member."
Receipts presented at the arbitration hearing clearly
establish that the Carrier's Supplemental Brief was received by the
organization on February 13, 1990. The hearing was held on
February 20, 1990. Hence, it is crystal clear that the Supplemental Brief containing the issues and arguments, upon which the Board
ultimately decided the case, was not timely presented in accordance
with the clear and unambiguous terms of the Public Law Board
Agreement.
Despite the overwhelming evidence that the Carrier did not
dispute the Organization's contractual right to the work or raise
the exclusivity test on the property, the Board proceeded to decide
the case on that issue. Fortunately, we are not left in the dark
as to why the Board decided the case based on this issue. In-fact,
the Board clearly set forth its reason in Footnote No. 1 at Page 8
of the award. A careful reading of Footnote No. 1 reveals where
the Board went wrong. It reads:
"1 The Organization complains that the Carrier has
'sandbagged' it by raising this issue at the last moment.
In correspondence on the property, the Carrier did not
"dispute the Organization's right to the work. In fact,
the Carrier did not raise the issue until after the claim
was presented to this Board. On the property, the
Carrier simply argued that Rule 52 had been satisfied.
However, where the Organization complains of
the contracting of work, it must as a threshold matter
establish that it owns the work in question. If the
Agreement does not explicitly give it the work, the
Organization must show that it owns the work by past
practice. Until the Organization has made such a
showing, the Carrier is not obliged to present evidence
to the contrary. Therefore, we do not find that the
organization was improperly 'sandbagged' in this case."
(Emphasis added)
The Board clearly recoctnized, "*** In correspondence on the
property, the Carrier did not dispute the Organization's right to
the work. ***" Based on this sentence standing alone, this case
should have been sustained. Railroad arbitration is not de novo
arbitration. The Board is restricted to considering the record
developed in the correspondence on the property. In that record,
the Carrier never disputed the Organization's basic contractual
right to the work.
In the second paragraph of the footnote, the error in the
basic premise of the award is further elucidated. The Organization
agrees that, "... it must as a threshold matter establish that it
owns the work in question. ***" However, the Organization did just
that. The Organization cited Rules 1, 4, 8 and 52 and stated that
these rules reserved the disputed work to the Organization. As the
Board recognized in the first paragraph of the footnote, the
Carrier did not dispute this during the handling on the property.
The Organization also repeatedly stated that BMWE had customarily
and traditionally performed the disputed work. These statements
- 8 -
q--Liq-
were likewise not disputed by the Carrier during the handling on
the property. It would have been redundant indeed for the
organization to develop and present evidence to support statements
which remained undenied and undisputed by the Carrier. If the
Carrier had challenged either the rule support or the past practice
position of the Organization, the Organization would indeed have
been obligated to present evidence. BUT. NO SUCH CHALLENGE WAS
EVER MADE.
Simple logic supports the Organization's position that it had
no obligation to present evidence to support uncontested statements
of fact. Moreover, the NRAB has repeatedly and consistently held
that where basic issues such as scope coverage and exclusivity are
not raised on the property, they may not be considered by the
Board. See Third Division Awards 20230, 20258, 23354 and 26212
which are but a few of the many awards holding to this effect.
Typical thereof is Award 23354, which held:
"In its submission to this Board, Carrier raised the
argument that the work in question was not work exclusively reserved to the Organization. That argument was
not brought up on the property, and therefore cannot be
raised for the first time before the Board. Consequently, the issue will not be considered here."
Footnote No. 1 makes it transparently clear that the Board was
in error when it (1) considered the exclusivity argument and (2)
held that the Organization was obligated to present evidence to
support a position that was uncontested during the handling on the
property.
In essence, a careful review of Footnote No. 1 establishes
that Award 8 actually supports the Organization's position in this
dispute and on contracting out disputes on the Union Pacific in
general. The footnote clearly recognizes that the Carrier did not
challenge scope coverage during the handling on the property. This
finding is in harmony with the Organization's position in this and
other claims that Rule 8 (as well as Rules 9 and 10) are clearly
work reservation rules and have been so recognized by the Carrier
for decades. This recognition by the Carrier is precisely the
reason why no challenge to scope coverage was made during the
handling on the property. The challenge was raised four years
later, when new management unfamiliar with the historical mutual
interpretation of the Agreement replaced Mr. Meyers. Until that
time, not only Mr. Meyers, but also the Chief Engineering officer
had fully agreed with the Organization's understanding of Rule 8.
That is precisely why no challenge was made to the Organization's
Rule 8 position during the handling on the property.
THE EXCLUSIVITY TEST HAS NO APPLICATION UND R THE CONTR ING
COLLECTIVE BARGAINING AGREEMENT
"Exclusivity" is a past practice test, it sets forth a degree
of past practice. It has no application on the Union Pacific
because Rule 8 is clear and needs no past practice clarification.
This fact was clearly recognized in Third Division Award 14061
which interpreted the language in Rule 8 in 1965 and found that it
specifically reserved work to BMWE employes. Hence, even if the
- 10 -
`f 2-i9 8
exclusivity test had been timely raised by the Carrier, it should
have been rejected based on existing precedent on this property.
Even if reason could be found to reject the Organization's
position on Rule 8 (which would be difficult in light of the fact
that the Carrier itself did not reject that position during the
handling on the property), the exclusivity test still must fail in
light of Rule 52(a). Said rule clearly stipulates that work
"customarily" performed by BMWE employes may be contracted out if
certain stipulated exceptions are present. The logical conclusion
is that work "customarily" performed by the employes can NOT be
contracted out if the exceptions are not present. Hence, even if
Rule 8, where excluded from consideration and past practice was
controlling, the degree of practice that must be established is
"customarily" - not "exclusively". The application of the
exclusivity test under these circumstances is nothing less than an
attempt to change the Agreement from what the parties have written
("customarily") to a standard which was not considered or negotiated into the Agreement. A virtually identical rule was considered
in Public Law Board No. 4402, Award 20. In that case, the Board
clearly rejected the exclusivity test based on the parties' use of
the word "customarily" as opposed to exclusively in the Agreement.
Although we hesitate to further burden this already lengthy
dissent, due to its overwhelming relevance, we invite attention to
the pertinent paragraphs of Award 20 of Public Law Board No. 4402:
"Third, we disagree with the Carrier that in order
to demonstrate a violation of the contracting provisions
in the Note to Rule 55 and the December 11, 1981 letter
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"that the Organization must show that work that has been
contracted out has been previously performed exclusively
by the covered employees. The negotiated language
governs work 'which is customarily performed by the
employees' - not work that is 'exclusively' performed
[emphasis added]. The analysis on this question is
similar to the resolution of the Organization's arguments
concerning the notification requirements. Had these
sophisticated negotiators intended that these disputes
were to be governed by the exclusivity doctrine, they
could have easily said so.' See e. g., Third Division
Award 20633 between the parties (quoting Third Division
Award 20338) "'... Additionally, we observe that the
Note to Rule 55 specifically alludes to work which is
customarily performed by the employes rather than the
frequently argued doctrine involving work exclusively
performed."' [emphasis in original]); PLB 4370 Award 21,
quoting Third Division Award 24280 ('. . [T]he Organization need not meet the burden of exclusivity of work
assignment . .'). Of particular interest is PLB 4768,
Award 1 and awards cited therein, which, although
discussed in a notice context, makes the correct analysis
[emphasis in original]:
.. [T]he Board takes guidance from
Awards which distinguish 'customarily performed' from 'exclusively'. Citation of only
a few of these will suffice.
Third Division Award No. 26174 (Gold)
states:
The difference between the definition of 'customarily' and the more restrictive 'exclusive' is significant. 'Customarily' is defined as 'usual . . conventional, common, regular.' 'Exclusive' is defined as 'not
admitting of something else; incompatible ... shutting
out all others.' The
Random House
Dictionary of the
English Language
(2nd ed.). Therefore, work can be
'customarily' performed while not being 'exclusively'
performed. Further, given the prior extensive use of the
word 'exclusive' in this industry, the failure to include
that language in the relevant agreements but rather using
the word 'customarily' supports the conclusion that the
parties did not intend to apply the exclusivity principle
to contracting out issues.
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"... While there may be a valid
disagreement as to whether the work
at issue was exclusively reserved to
those employes, there can be no
dispute that it was customarily
performed by Claimants.
Third Division Award No. 27012 (Marx)
states as follows:
The Board finds that the Carrier's insistence on an exclusivity
test is not will founded. Such may
be the critical point in other disputes, such as determining which
class or craft of the Carrier's
employees may be entitled to perform
certain work. Here, however, a
different test is applied. The
Carrier is obliged to make notification where work to be contract out
is 'within the scope' of the organization's Agreement. There is no
serious contention that brush cutting work is not properly performed
by Maintenance of Way employes, even
if not at all locations or to the
exclusion of other employees . ...
Therefore, we find that the Organization need not
demonstrate exclusivity to prevail under the Note to Rule
55 and the December 11, 1981 letter. The exclusivity
principle is for analysis of disputes determining which
class or craft of the Carrier's employees are entitled to
perform work and is not relevant to contracting out
disputes. The Organization must, however, demonstrate
that the employees have 'customarily performed' the work
at issue. Given the descriptions of undercutting work
found in the Agreement and further given the statements
of the employees submitted by the Organization showing
the extent of that work previously performed, we find
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"that the Organization has demonstrated that the employees have 'customarily performed' undercutting work.'
' We recognize that there is a split in authority on
this question and that awards exist requiring a demonstration of exclusivity. However, we believe that the
basic principle of contract construction discussed above
concerning manifestation of intent through the clear
language of 'customarily' rather than 'exclusively' along
with the rationale of those awards that do not adopt the
exclusivity requirement are the better reasoned approaches to this question."
EXCLUSIVITY APPLIES TO CL&SS ANA CRAFT CASES - NOT SUBCO
The Board continues in its divergence from well-reasoned
precedent when it compares contracting out cases to inter-craft
jurisdiction cases. The distinction between these two types of
cases are clear and unmistakable. In craft jurisdiction disputes,
the Board is faced with competing collective bargaining agreements.
Where work appears to fall within both agreements or in the grey
area between the agreements, arbitrators have looked to a showing
of exclusive past practice to resolve the conflict. Subcontracting cases are distinguishable because there is no competing
collective bargaining agreement. This distinction was historically
recognized and accepted by the NRAB in Third Division Awards 7836,
11733, 13236, 13237, 14121, 23217 and 25934. Moreover, the most
recent awards of the NRAB and Public Law Boards establish an
emerging consensus of arbitrators who are restricting the exclusiv-
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Lfa
~~ -g
ity test to class and craft jurisdiction cases. In addition to
Award 20 of Public Law Board No. 4402 cited above, see Third
Division Awards 27012, 28045 and Award 1 of Public Law Board No.
4768.
The Board states that it would somehow be unreasonable for the
Organization to be able to prevail in a sub-contracting case when
it would not be able to prevail if the same work was assigned to
another craft. The Board is simply wrong as the following example
clearly establishes. On many carriers, brush cutting on the right
of way from property line to property line is within the BMWE
collective bargaining agreement. However, within that geographical
boundary, the work of cutting brush under the signal lines may be
within the Signalmen's agreement. Hence, neither Organization
would have an exclusive right to brush cutting. However, simply
because there was an overlap or grey area between the competing
collective bargaining agreements is no reason to remove the work
from both agreements and assign it to a sub-contractor. This is
precisely the principle that was recognized in Third Division Award
27012.
Moreover, the rationale that the exclusivity test applies only
to instances where there are competing collective bargaining
agreements has been extended to other types of cases. See Second
Division Award 11902 and Third Division Awards 25469, 25991, 28185
and 28349. In each of these cases, non-agreement supervisors
performed bargaining unit work. Despite the fact that the
petitioning craft was unable to prove exclusive jurisdiction over
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Ha F1 -q
the work (as opposed to other crafts), the claims were all
sustained based on the theory that the exclusivity test applies
only to craft jurisdiction cases. The absence of a competing
collective bargaining agreement nullified the exclusivity test.
The final error in Award 8 is reflected in Footnote No. 3 at
Page 10. There, the Board recognizes that the so-called exclusivity test does not really mean `exclusive", i.e., that there can be
exceptions. However, if there are exceptions, then the term
"exclusive" no longer applies. That is precisely the Organization's point. Exclusivity is rigid, an unbending test that was
certainly never negotiated into the Agreement by the parties and
can not logically be implied because to do so does violence to the
Agreement (Award 1 of Public Law Board No. 4768, supra).
If the exclusivity standard does not apply, what is the
standard in past practice cases? Rule 52 answers that question,
the controlling standard is "customarily" (Award 20 of Public Law
Board No. 4402, supra).
CONCLUSION
Award 8 of Public Law Board 4219 is clearly an anomaly. It is
based on reasoning the conflicts with:
(1) Public Law Board No. 3943, Award 1 concerning the
application of Circular No. 1 to cases withdrawn
from the NRAB for handling on a Public Law Board.
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Lia~
(2) Award 14061 concerning the interpretation of the
Rule 8 language on this property and the rejection
of the exclusivity test.
(3) Third Division Awards 20230, 20258, 23354 and 26212
which held that issue of scope coverage and exclusivity may not be considered if they were not
raised on the property.
(4) Public Law Board No. 4402, Award 20 which interpreted language virtually identical to Rule 52(a)
and ruled that the controlling standard was "customarily".
(5) Recent Second Division Award 11902, Third Division
Awards 25469, 25991, 27012, 28045, 28185, 28349,
Award 1 of Public Law Board No. 4768 and Award 20
of Public Law Board No. 4402 which have restricted
the application of the exclusivity test to class
and craft cases.
Therefore, I dissent.
Respectfully submitted,
C. F.'F ose
Organization Member
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