*PUBLIC LAW BOARD NO. 6182
BROTHERHOOD OF LOCOMOTIVE ENGINEERS )
) Case No. 1
and )
Award No. 1
GRAND TRUNK WESTERN RAILROAD, INCORPORATED )
Martin H. Malin, Chairman & Neutral Member
J. M. Karakian, Employee Member
K. R. Knox, Carrier Member
Hearing Date: October 27, 1998
QUESTION AT ISSUE:
Has the Carrier demonstrated a bona fide need, as required
by Article IX of the 1996 BLEJGTW Agreement, to vary the
starting times of Yard Assignments 113YC, 213YC, 313YC and
108PMC at Pontiac, MI and 117AP BRT at Flint, MT, outside
the bounds o£ Article 19 of the Schedule Agreement, pursuant
to their notices served January 14 and 15, 1997?
FINDINGS:
Public Law Board No. 6182, upon the whole record and all the
evidence, finds and holds that Employee and Carrier are employee
and carrier within the meaning of the Railway Labor Act, as
amended; and, that the Board has jurisdiction over the dispute
herein; and, that the parties to the dispute were given due
notice of the hearing thereon and did participate therein.
Article 19 (B) of the Schedule Agreement provides:
When three eight hour shifts are worked in continuous
service, the time for the first shift to begin work will be
between 6:30 a.m. and 8:00 a.m., the second 2:30 p.m; and
4:00 p.m. and the third 10:30 p.m. and 12 midnight.
On January 14, 1997, Carrier served notice that, pursuant to
Article IX of the 1996 BLE/GTW Agreement, it planned to vary the
start times for four position at its Pontiac yard. Carrier
stated that three of the changes were necessary "to meet the
customer's switching times of 0600, 1000, 1400, 1800, 2200, and
0200." The fourth was necessary "to meet the customer's request
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for a daily late switch." On January 15, 1997, Carrier served
notice that it planned to vary the start time of one position at
its Flint yard, "to provide more timely service at Flint in order
to make CSX connections." Subsequently, Carrier rescinded the
Flint change and one of the Pontiac changes. At the hearing the
parties agreed that only three positions at Pontiac remain for -
decision by this Board.
The organization contends that Carrier had the burden to
prove that the changes were predicated upon a bona fide need to
meet customer requirements by servicing the shipper outside of
existing work rules related to start times. The Organization
argues that Carrier maintains a twenty-four hour switching
operation and has the ability to service the customer, General
Motors, without changing start times. The organization urges
that the real reason for the changes in start times was to reduce
overtime. In the Organization's view, Carrier failed to prove
its bona fide need. The Organization argues that Carrier offered
no documentation to support its assertions that a bona fide need
existed.
Carrier contends that the organization had the burden to
prove that Carrier lacked a bona fide need and that the
organization failed to carry its burden. Carrier argues that the
changes were dictated by the needs of its customer, General
Motors. Carrier maintains that General Motors had threatened to
take its business elsewhere if Carrier did not improve the
service. Carrier argues that without the varied start times,
Carrier had to pay penalties for air freight when it did not make
the proper connections from the plant to the proper trains.
Carrier denies that the changes were motivated by a desire to
eliminate overtime. Instead, in Carrier's view, they were
dictated by the needs of a customer.
Initially, we note that both parties have submitted material
that was not considered on the property. This Board is limited
to consideration of matters raised on the property. We base our
decision on the evidence exchanged on the property and not on the
material submitted by either party after the close of the record
on the property.
Article IX provides:
1. (a) When GTW can show a bona fide need to meet
customer requirements by servicing that shipper outside
of the existing work rules related to starting times
and yard limits for yard crews, such service may be
instituted on an experimental basis for a six-month
period.
(b1 Prior to implementing,such service, the carrier
will extend at least 14 days' advance written notice~to
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the General Chairman of the employees involved. The
notice will include an explanation of the bona fide
need to provide the service, a description of the
service, and a listing of the work rules related to -
starting times and yard limits for yard crews which are
at variance with existing agreements.
(c) A Joint Committee, comprised of an equal number of
carrier representatives and organization
representatives, shall be constituted to determine
whether a bona fide need exists to provide the service.
If the Joint Committee has not made its determinations
by the end of the 14 day advance notice period
referenced in Paragraph (b), it shall be deemed to be
deadlocked, and the service will be allowed on an
experimental basis for a six-month period. If, after
the six months have expired, the organization members
of the Joint Committee continue to object, the matter
shall be referred to arbitration. Pending decision by
the arbitrator, the service may continue to be operated
on an experimental basis.
(d) If the parties are unable to agree upon an
arbitrator within seven days of the date of the request
for arbitration, either party may request the National
Mediation Board to appoint an arbitrator.
(e) The determination of the arbitrator shall be
limited to whether the carrier has shown a bona fide
need to provide the service requested or can provide
the service without a special exception to the existing
work rules related to starting times and yard limits
for yard crews being made at a comparable cost to the
carrier.
Each party contends that the other party had the burden of
proof with respect to the existence of a bona fide need to vary
the starting times. Generally, in rules cases, the organization
bears the burden of proof. However, such a general rule merely
reflects the probable intent of the parties in most rules cases.
Where the parties have expressed a contrary intent in the
agreement, the Board must respect that intent.
We find it significant that Article IX(1)(a) did not simply
state that Carrier may vary the starting times where a bona fide
need to service a customer exists. Rather, the provision
specified that the starting times may be varied "[w]hen GTW can
show a bona fide need to meet customer requirements . . ."
(Emphasis added.) This language plainly places an initial burden
on Carrier to show the existence of a bona fide need. At a
minimum, to carry its burden, Carrier must come forward with
evidence of a bona fide need to meet customer requirements.
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Our interpretation that Carrier must come forward with
evidence of a bona fide need is reinforced by the language of
Article IX(1)(e), which provides that the arbitrator determine
"whether Carrier has shown a bona fide need . .1
'
(Emphasis
added.) In.other words, the arbitrator must decide whether
Carrier has met its burden to show a bona fide need, the burden
imposed on Carrier in Article IX(1)(a). Similarly, the question
presented to this Board is, "Has the Carrier demonstrated a bona
fide need . . ." (Emphasis added.)
Before the Board. Carrier has argued that it changed the
starting times in response to complaints from General Motors and
threats by General Motors to take its business elsewhere.
Carrier has argued that under the schedules mandated by Article
19, it was forced to pay penalties for air freight when it did
not make the proper connections. Carrier has argued that the
starting times mandated by Article 19 did not allow it to match
employees with the needed switches which General Motors demanded
be made when its employees were on break and during its shift
changes. If Carrier demonstrated these points it would have
shown a bona fide need under Article IX. -
The record developed on the property, however, is quite
sparse. A Joint Committee conference was held, apparently on or
about January 20, 1997. On April 9, 1997, the Organization's
General Chairman wrote to Carrier's Director, Human Resources
appealing based on the deadlocked status of the Joint Committee.
The General Chairman maintained:
[W]bile in Joint Committee session, conferencing developed
and revealed the fact that you are already providing service
in accordance with the existing starting time rules, and
that the customers' service needs are better met under the
existing starting time arrangement . . . .
On May 15, 1997, Carrier's Manager Labor Relations replied:
We feel that Article IX Section iB has been complied with in
that a joint meeting was held and the Carrier's plan was
discussed. Subsequent to the meeting, the yard assignments
that had been identified were changed to better service the
customers . . . .
On July 15, 1997, the General Chairman wrote to the Manager
Labor Relations advising that Carrier's decision was not
satisfactory to the Organization. A conference apparently was
held on February 5, 1998. On February 18, 1998, the General
Chairman wrote to the Director Labor Relations, stating:
[W]hile in Conference you did not provide any evidence-ofthe-fact that the Carrier needed to provide the Service in a
way that would require changes in yard starting times . . . .
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While in Conference the Carrier contended that they (the
Carrier) have a right to change yard starting times, per
Article IX, in order to eliminate overtime costs so as to be
able to keep the business from being lost to a competitor
and continue Servicing the customer. The Organization
argued in Conference that you (the Carrier) offered
absolutely no evidence that you could lose the business to a
competitor or that a competitor was going to undercut you. .
On February 24, 1998, the Manager Labor Relations responded:
During conference . . . Assistant Superintendent of Pontiac
stated that prior to the change in the starting times there
were late switches, the cars failed to make connections on
the proper trains which resulted in unnecessary overtime and
complaints and threats from the customer. Your assertions
that overtime was the only reason the starting times were
changed is in error. However, subsequent to the changes in
the starting times the operation has improved greatly, as
the cars are making the proper connections, the overtime has
decreased and the customer complaints have diminished.
On March 2, 1998, the General chairman replied: "It has been
the constant position of the Organization, from the outset, that
when requested to show a bonafide
(sic)
need to change yard
starting times, you were not forthcoming with any evidence
whatsoever (i.e. complaints, letters, etc.)."
Our review of the record reveals no evidence that penalties
for air freight were ever discussed on the property. The only
matters revealed by the record as considered on the property were
assertions by the Assistant Superintendent of Pontiac that prior
to the changes there were late switches, cars failed to make
connections, resulting in threats and complaints from the
customer, and that the operation had improved since the changes
were instituted. However, assertions are not evidence. There is
nothing in the record developed on the property by way of
evidence supporting those assertions. Although the Organization
requested documentation, none exists in the record. There is no
evidence of the specific complaints or threats, who made them,
when they were made, or how they were linked to the starting
times provided for in Article 19. Without any supporting
evidence, Carrier cannot show a bona fide need to meet customer
requirements by servicing General Motors outside of existing work
rules related to starting times.
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.. AWARD
The question presented in answered in the negative.
Marti~Malin, Chairman
R. Kno3 ~i. Karakian
Carrier Member ~loyee member
Dated at Chicago, Illinois, November 25, 1998.
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