PUBLIC LAW BOARD NO. 6205
AWARD NO. 7
CASE NO. 7
possess the equipment and resources to properly dispose of tie butts and debris.
The correspondence on the property reveals that the Organization provided pictures and literature the on "Lucky Loader" tie handling cranes in Carrier's inventory that it claimed has the ability to handle 19 ties per lift and outperform the actual REO equipment utilized by the contractor in this case, alleging that it was the most efficient and productive tie handling equipment since it rides on the outer edges of gondola cars making rightof-way access convenient. The Organization also pointed out that this nonemergency contracting was a loss of work opportunity for Claimant, and asserted that the work in issue had been customarily performed by employees and specifically reserved to - them by Agreement Rule 10, relying on Third Division Award 28817.
Carrier's position on the property was that it had a mixed practice of performing this work with both employees and contractors, attaching a 37 page summary of prior contracting purporting to support this contention. Carrier also noted that proper notice had been served and conference held in compliance with Rule 52, and that Claimant was fully employed during the relevant time period.
The Organization took exception to the listing of past practice as it related to cleaning the right-of-way, arguing that of the 467 instances on the summary, only 3 referred at all to ties, and none referred to tie butts and related debris, only 4 related to trackage removal and all such instances involved abandoned trackage, all other instances involved different types of work, were undated and had no contractor names or locations for verification, and did not reveal whether any of the Rule 52 ~,L~ NJ 6=~-os
In its Submission to the Board, Carrier argued for the first time that this dispute involved the sale of Carrier property to the contractor on an "as is where is" basis, attaching a copy of the purported contract. It also asserted that the Organization's attempts to bargain a change of language of the Scope rule during negotiations represents a tacit admission that such rule is not exclusive with respect to the work in issue, attaching a copy of a Section 6 Notice served by the Organization on February 25, 1980. It is accepted practice that this Board will not consider any arguments or documents not discussed or presented by the parties on the property. Thus, these arguments and documents come too late and have not been relied upon by the Board in rendering its decision herein.
With respect to the Organization's objection to the notice given by Carrier in this case, we are of the opinion that it meets the requirements set forth in Rule 52. The notice was given, and conference held, some six months prior to the actual contracting of the work disputed in this claim. The notice itself, while listing 28 different areas where the work will be performed, does set forth the Mile Post locations within each listed subdivision for ease of reference and specificity. While there are no specifics in the record concerning the conference held, neither party asserts that the conference requirements were not complied with. Thus, we find no notice violation occurred.
The decisions concerning Carrier's ability to contract out various types of work on this property are abundant, and Carrier relies specifically on Third Division Award 30063 and Public Law Board No. 5546, Award 14 in arguing that it has established a past practice of contracting similar
work which should be followed by this Board. It also relies upon the summary of prior contracting instances presented to the Organization on the property as evidence of its past practice. The Organization relies upon Third Division Award 28817 as the seminal case on this property involving tie removal and the cleaning of right-of-ways, finding that such work was specifically reserved to employees by the Agreement and could not be contracted. That case has been cited and subsequently relied upon to sustain similar claims in Third Division Awards 31042, 31044, 31045, 30005, 31037, 30528.
The Board has carefully reviewed the extensive record in this case, as well as all cited contracting cases on the property dealing with similar type of work. We are of the opinion that the Organization has sustained its burden of proving that Carrier violated Rule 52 by contracting out the unloading, pickup and disposal of crossties in this_ case. The Organization met its initial burden of showing that work of this nature is encompassed within the Agreement, see Third Division Award 28817, and has ,been customarily performed by employees, as admitted by Carrier. The burden then shifts to Carrier to show why it was permitted to contract out the work.
Carrier relies upon the "prior rights" language of Rule 52(b) in arguing that its past practice permits it to engage in the instant contracting. In support of this argument, Carrier submitted a 37 page summary of prior instances of contracting, as well as arguing stare decisis, citing Third Division Award 30063 and PLB No. 5546, Award 14
However, the evidence of past practice presented in this case falls far short of establishing any practice of having contractors unload, pickup or ~~ g :u~ ~~ oS
dispose of crossties. As noted by the Organization in rebuttal to Carrier on the property, the listing of 467 instances of contracting on uncertain dates in the past contains only 3 references to ties and none to tie butts and related debris, and has only 4 references to removal of abandoned trackage. The bulk of the "past practice" evidence relates to work of demolition and dismantling of buildings and structures, sale and removal of structures, grading and unrelated non-right-of-way cleaning. As found in Third Division Award 30005, "the instances of 'past practice' cited by Carrier is unconvincing as to the 'pickup, removal, disposing and loading' work involved here."
The Board has reviewed the cases relied upon by Carrier and find them distinguishable on their facts. In Third Division Award 30063 (dealing with the work of removing ties and debris) as well as PLB No. 5546 Award 14 (dealing with pickup and disposal of ties), it was found that the Organization failed to meet its burden of rebutting Carrier's evidence of past practice of contracting out similar type of work. The Board noted in PLB No. 5546, Award 14 that Carrier had submitted an exhibit showing at least a dozen instances of similar type of work being subcontracted on each of over 30 pages, and in Award 30063 some 43 instances of prior contracting were established. We are unable to know with certainty the type of evidence of past practice submitted by Carrier in those cases, so we cannot say that those findings were palpably erroneous. However, on the basis of the record before us, the showing of past practice by Carrier is clearly not the same, and has been adequately rebutted by the Organization. It is interesting to note that Carrier did not take issue with the Organization's rebuttal to its past practice evidence on the property.
We note that, in the instant case, Carrier defended its right to contract out the work on the basis of the "prior rights" language of Rule 52(b), not on the basis of the existence of an exception listed in Rule 52(a). While Carrier did aver in its initial response to the claim that it did not possess the equipment or resources to properly dispose of the tie butts and debris involved, it did not offer any proof of such fact and failed to rebut the Organization's evidence that its "Lucky Loader" equipment could perform the job at least as well as the equipment utilized by the contractor. Thus, unlike the fact situations decided in Cases 1 and 2 of this Board, there is no showing in this case that specialized equipment was required herein or that such equipment could only be leased with operators.
There are numerous awards on this property which hold that Carrier violated the Agreement by contracting out the work of cleaning of rightof-way ties, see Third Division Awards 28817, 29561, 30005, 30528, 31037, 31042, 31044, 31045, and unloading crossties, see Third Division Awards 28590, 31025, 31038, 31041. The record in this case supports a similar finding.
With respect to the appropriate remedy, the Third Division has provided financial reimbursement to fully employed claimants under a theory of make whole relief for lost work opportunities on this property in cases involving a violation of Seniority District Rules (see e.g. Third Division Awards 32331, 30408, 31228, 31292, 31569), notice violations in subcontracting cases (see e.g. PLB No. 5546, Awards 5 & 7, Third Division Awards 32862, 29577, 29472), and on other properties in cases finding subcontracting violations (see e.g. Third Division Awards 32335, 31798, 31752, 31521). We also note that the Board in Third Division Award 28817 ' pt. 6