The Public Law Board, upon consideration of the entire record and all of the evidence, finds that the parties are Carrier and Employe within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by agreement; that it has jurisdiction over the dispute involved herein; and that the parties were given due notice of the hearing held. At the hearing of this matter, the parties indicated that the Claimants had waived the rights of appearance and were therefore not present.
Mediation Board in Washington, District of Columbia, on Wednesday, April 21, 2004, at which time the representatives of the parties appeared. All concerned were afforded a full opportunity to present such evidence and argument as desired, consistent with the agreement that created the Public Law Board. The parties waived any oath that may apply to the Neutral Member of the Public Law Board.
This record reflects that after the above-noted hearing was concluded, in correspondence dated June 25, 2004, the parties agreed to the withdrawal of Case No. 7, so that currently pending for decision are Public Law Board No. 6510, Case Nos. 1-6 and B.
The parties have stipulated that the currently pending 7 cases, including Case No. e, which is the specific case to be dealt with by this Opinion and ward, all involve the interpretation of the parties' June 1, 7.999 System Agreement ("System Agreement"). As such, it is well-settled that the burden of" proof must be satisfied by the party bringing the grievance, namely, in this case, the Organization. Accordingly, the Organization must prove by a preponderance of the evidence that its position is correct.
The parties have also stipulated that all 7 pending cases, including case No. 8, have in common the fact that the events that gave rise to each specific claim involve contracting out of work this Organization claims was exclusively reserved to its members. It firmly believes that it successfully negotiated and expanded the Scope Rule in the current System Agreement which, if properly interpreted, would constitute an iron-clad bar to any contracting-
out of the above-mentioned work reserved to its members by Paragraph 2 of this Scope Rule, absent its express consent . It submits that the work that was contracted out by this Carrier on January 7, 8, 9, 10, 11, 17, 18, 19 and 20, 2000 (cut brush and operating a dump truck) between Mile Posts DVB-197.9 and DVB-240 on the Eastern Kentucky Seniority District, as spelled out in its Statement of Claim), is covered by the current Scope Rule and particularly unnumbered paragraph 2 of that Rule; was on its face reserved to members of this organization such as these Claimants; and that the General Chairman never consented that the involved work could be contracted out as this Carrier did in the instant matter.
Thus, the organization urges that it has a very strong case on the merits and one that requires that this claim be sustained in its entirety, based on the organization's reading of the Scope Rule and its interpretation of that rules application to the underlying facts of this case.
The organization acknowledges that the comprehensive Opinion and Award in Public Law Board No. 6508 involving these parties, Cases 1-8 ("Douglas Award") sets forth a differing interpretation of the meaning and application of the scope Rule under discussion. To the extent that the Douglas Award does not adopt the Organizations reading that this Scope Rule constitutes an absolute bar to the Carrier's contracting out, the Organization contends that the holding of the Douglas Award is palpably erroneous. The Organization maintains that this Board should therefore follow its
reading of the Scope Rule and reject those aspects of the Douglas Award that are inconsistent, with this position, it argues.
Putting aside the general contentions, when the organization turns to the specifics of the instant claim, it argues that the equipment used by the outside contractor was a high rail bucket truck and a wood chipper. The organization further argues that it is undisputed on this record that the carrier either had in its inventory or could have obtained through rental and lease this equipment but that, at any rate, it is to be remembered that "the subject of the Carriers contract with its employees is work not equipment," citing Third Division Award 6905. The Organization also claims that claimants were trained and qualified to use this equipment and do the work which underlies the instant claim and that the work is not only scope-covered but also work that has been historically performed by this craft.
With regard to the issues in Case No. a, the organization further suggests that any intimations by the Carrier that this case somehow involves the emergency exception or safety issues that would limit the Scope Rule, such arguments should be rejected out of hand. First, the organization argues that the intent to contract out notice was issued on August 9, 1999 but the work was done starting January 7, 2000, some five months later. second, although the brush cutting was concededly being done to improve signal visibility, the problem addressed was routine: growth of vegetation and brush along the track that could obscure the track signals- Thus, the Carrier cannot be allowed to create its own
"emergencies" or create safety issues from routine and customary maintenance work that repeatedly comes up each year, the organization reasons.
The organization thus stresses that, in the current case, there is no dispute between this organization and the Carrier concerning the fact that proper notice was given of the contemplated contracting out by the Carrier on August 9, 1999, nor that the matter was discussed by the parties in conference on August 20, 1999. As noted above, however, those conclusions did not allow the Carrier to contract out scope-covered work, absent consent from the General chairman, as the organization .also sees it. Any claims of emergency or safety exceptions should be discounted as false, the Organization concludes.
Alternatively, even if the teachings of the Douglas Award might be accepted by this Beard, the Carriers alleged business justifications cannot be found to be more than mere boilerplate, the organization further suggests. It strongly urges that the carrier claims of a binding past practice for brush cutting work between the Organization and Conrail is completely irrelevant under the current Scope Rule; the Carriers claim that it had no opportunity to lease the equipment needed nor similar equipment in its own inventory is clearly wrong under recent precedent (Third Division .Awards 35531 and 35532), but further certainly stands unproved on this record; and any claim as to a lack of skills or expertise by claimants as members of the Organization,,similarly
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far this case, as well as the other 6 pending matters, as was discussed in great detail in the lead case issued by this Board, Case No- 1. To the extent applicable, all findings of fact and the holdings in case No. 1 are expressly incorporated in the instant Award as if fully rewritten and are expressly adopted by this Board, we rule.
Accordingly, we find that Paragraph 2 0£ the expanded Scope Rule covers the work in question but that the Organizations contention that this paragraph also constitutes an iron-clad bar against contracting out by the Carrier, absent the Organizations express consent, is not a correct interpretation of the meaning of that paragraph or the reach of the Scope Rule. Contracting out is permitted to the Carrier under certain circumstances under the System Agreement, we rule, but the Carrier is required to shoulder the burden of presenting persuasive and overwhelming evidence o£ the business justifications that require it to contract out in each specific case. Strict scrutiny o£ the reasons presented by the Carrier is the required standard of analysis. Prior practices on the property under predecessor agreements cannot properly be deemed to be binding past practices under the expanded Scope Rule, the majority of the Board also holds.
With these findings firmly in mind, the Board turns to the facts and arguments contained in this specific case. The organization asserts that all the proffered business justifications of this carrier are mere boilerplate and do not, when fairly read, constitute specific proof so as to carry Management's high burden
particulars were presented to the organization to justify the Carrier's contemplated decision to contract out, we hold. This is so because, other than the claim that the Carrier could not, generally, rent the specialized on-track brush cutting equipment needed to do this work, no precise reasons were offered to substantiate that claim. Yet, as these Awards in Third Division cases 35531 and 35532 demonstate, a greater obligation is required to be shouldered by the Carrier here. The Carrier is obliged to explain its attempts to procure rental equipment or to give reasons why such equipment could not be obtained in the specific case, we hold. The generalized proofs offered by the Carrier do not meet that standard, the majority of the Board specifically rules.
The "past practice" contention cannot be deemed controlling under the current Scope Rule, we also find, for the reasons detailed in case No. 1. The claim of an emergency or safety concerns does not ring true, when brush cutting to ensure visibility o£ signals is a routine, normal part of maintenance and not an "Act o£ God" trigger to action, we are convinced. Crucial to that finding is the time lag between the subject notice and the need for the work. Nearly five months of anticipation is not an emergency situation, we reason.
Consequently, we hold that the organization has sustained its burden o£. proving a prima ac'e case that brush cutting is scopecovered work. The Carrier has not satisfied its burden of proving its affirmative defenses set forth in detail above so as to satisfy the "strict scrutiny" standards mandated by the Douglas Award. On
that basis, we find a contract violation and the claim is thus sustained.
Turning to the remedy, the majority finds the holding in the Douglas Award to be once again extremely significant- The Douglas Award expressly finds that the loss of work opportunities "may permit" compensation of the claimants, even if there is no showing of an actual, tangible loss of pay for either of them who were, clearly, in a "full employment" situation, the monetary remedy is to protect the Agreement, as the Douglas Award says, we conclude.
However, each case must be decided on its own facts. In this case, where there is_ evidence of a long-standing past practice of contracting out the work prior to the expansion of the Scope Rule; acquiescence by the Organization in this specific type of contracting out before the Scope Rule came into existence; and no proof of bad intent or motive on the part of this carrier; there seems to be no need to impose the penalty of overtime pay to protect the contract. Each claimant shall therefore receive compensation for 90 hours' pay at the respective brush cutter and truck driver's straight time rate of pay. The Board's Award to that effect follows.