PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO )
 DISPUTE ) UNION PACIFIC RAILROAD COMPANY
I. STATEMENTS OF THE II. OPINION OF BOARD
 QUESTION
 The parties have different views A· The Carrier's Ability
 Require That Foremen And
 of the statement of the question in Assistant Foremen Obtain
 this dispute, which are as follows: CDL And/ Or DOT
 Certification
 A. The Organization Notwithstanding how the parties
 Do existing rules and practices frame the question, the dispute in
 under the January 1, 1973 this case is over the Carrier's ability
 Agreement (as revised) permit Union to require foremen and assistant
 Pacific to place DOT certification foremen who may be reasonably
 and/or Commercial Driver's License required to operate certain vehicles
 ("CDL") qualifications on foreman or as part of their job duties to obtain
 assistant foreman positions? a CDL or DOT certification.
 B. The Carrier In terms of structuring the
 Do existing rules and practices analysis of the dispute, this is, for
 under the collective bargaining all purposes, a contention by the
 agreement prohibit Union Pacific Organization that the Carrier's
 from requiring foreman and imposition of such requirements
 assistant foreman to operate trucks violates existing contract language.
 as part of their duties and The burden is therefore on the
 qualifications and thereby obligate Organization to make that showing.
 such employees to obtain We find that 'the Organization
 commercial drivers licenses and/or cannot meet that burden.
 DOT certification? Generally, a carrier has the basic


1 Organization Submission at 1; Carrier Submission at 1 (and as amended at the hearing).
 PLB No. 6792
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 Page 2
 positions. 2 Obviously, the Carrier Claimant had performed the
 P Y, identical job in the past, there is

 can waive that right. But, if a nothing to preclude the Carrier
waiver is going to be found, it qualifications and requiring

 should b e " clear arid that any applicant who is to be
 selected have a valid driver's
 unmistakable". 3 license. The Organization
 contends that other employees
 Therefore, unless clearly do the driving for that position:

 prohibited by the Agreement, the however, this Board finds that
 there is nothing to preclude the
 Carrier has the managerial right to Carrier from changing the past
 practice and requiring that all
 impose reasonable qualifications for people assigned to that position
 the positions of foremen and be able to drive.
 assistant foremen, including a The Organization points out that the requirement that the obtain a CDL Truck Driver is required to have a
 req Y CDL to drive the equipment, while
 or DOT certification. See e.g., Third the EWE operates the equipment.
 However, the Carrier points out that
 Division Award 35010: the work classification rule of the
 Agreement provides that "[t]he
 The Carrier has the right to description of each position title
 establish qualifications for a job, outlined in this Article is intended
 subject to the requirements being to cover the primary duties of that
 reasonable. In Third Division position and, in addition it is
 Award 26295 the Board held: understood that each title
 comprehends other work generally
      ... [T]he Carrier retains the right recognized as work of that

      to set the qualifications for a particular classification". The

      job; and if the Carrier Carrier asserts that it is requiring a

      determines at some point that it CDL for EWES so that in the event

      wants to have only employees the Driver is absent the equipment

      who possess valid driver's can be operated on the road by the

      licenses in the particular EWE. While perhaps subject to

      position, that determination is debate, we cannot find that the

      fully within its managerial Carrier's reason for requiring EWES

      rights, as long as there is a to have a CDL to be lacking in a

      rational basis for it. In this rational basis. In those

      case, it is not unreasonable for circumstances where a Truck Driver

      the Carrier to want a person who is absent and a replacement is not

      can drive in the Track available, having an EWE with a

      Foreman's position. CDL will allow driving the

      Consequently, even if the equipment on the road, if necessary,

      and wlll therefore allow for further

      use of the equipment. Requiring an

    Third Division award 26295 (" the EWE to have a CDL is therefore

Carrier retains the right to set the reasonable. Given that the
 qualifications for a job "). requirement for an EWE to have a

 See e.g., Metropolitan Edison Co. u. CDL is a reasonable one, our inquiry
 National Labor Relations Board, 460 U.S. can go no further.
 693. 708 (1983) holding in an analogous
 situation that "... the waiver [of a right]
 must be clear and unmistakable."

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Other awards have come to the clear contract language does not
 same conclusion. 4 exist which prohibits the Carrier
 Therefore, in the event a foreman from imposing the qualifications it
 or assistant foreman is reasonably seeks. There is nothing in the
 required to operate a vehicle which language cited by the Organization
 would otherwise require the operator which states, to the effect, "only
 to have a CDL or DOT certification, employees in the following foreman
 we cannot say that the Carrier's or assistant foreman positions shall
 determination to require that be required to possess a CDL and/or
 individual to have a CDL or DOT DOT certification".
 certification is an unreasonable one Because clear language does not
 or one lacking a rational basis. prohibit the Carrier from imposing
 But no matter how rational or the CDL or DOT certification
 reasonable the Carrier's requirement requirement for foremen and
 may be, again, if the Agreement assistant foremen, we therefore find
 prohibits the Carrier from imposing that the Carrier can require those
 the requirement, the Carrier cannot individuals who may reasonably be
 do so. The focus now turns to the required to operate certain vehicles
 contract language. as part of their job duties to possess
 Because the Organization has such license or certification.
 the burden, it must show that clear The Organization's well-framed
 contract language prohibits the arguments do not change the result.
 Carrier from imposing the First, the Organization argues
 requirement that a foreman or that the governing contract
 assistant foreman who may operate language supporting its position is
 certain vehicles as part of that clears The Organization points to
 individual's job duties obtain a CDL Rules 5, 8, 9 and 10 and argues that
 or DOT certification. 5 We find that those rules classify employees and
 make reference to various
 4 See e.g., Third Division Awards 36992,
 36629, 35434, 35310, 33514, 32353, 31257, [continuation of footnote]
 31715, 31156, 29851, 26295; SBA 1016, resolve the matter. Because the
 Award 94; SBA 1135, Award 1. burden is on the Organization, the
 5 Third Division Award 34207: Organization is therefore obligated
 The initial question in any contract to demonstrate clear language to
    interpretation dispute is whether support its claim

    clear contract language exists to 6 Organization Submission at 27-35.

    [footnote continued)

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classifications of truck and But, as well-crafted as that
 equipment operators or welders and argument is, it is a boot-strapping
 specifically refer to "required one and ultimately not persuasive.
 licenses".7 Then, as the What the Organization is really
 Organization points out, Rule 6, arguing is that we should apply the
 which governs "Foreman - All rule of contract construction which
 Classifications", makes no reference states that that to express one thing
 to licenses. The Organization then is to exclude another. l° Here,
 concludes: $ according - to the Organization,

    Reading the plain language of Rules where the parties intended a

    5, 6, s, 9 and 10 in conjunction requirement for licenses or

    establishes beyond any question

    that existing rules do not permit UP certifications, they said so. Thus,

    to require any foreman according to the Organization,

    classification (foreman or assistant

    foreman) to obtain a CDL or perform where no language is found to

    truck driving work as part of their

    duties. The only exception to these require a license, the parties

    general rules is the Truck Driver obviously did not intend that to be a

    Foreman classification which the

    parties specifically chose to include requirement.

    in the special August 16, 1993

    Agreements concerning CDL truck That is a very good argument.

    drivers. However, the threshold premise for


    The Organization argues that ° that argument is missing. The rules

when the parties intended employes of contract construction apply only
 in particular classifications to when contract language is
 perform truck driving work and ambiguous. ll There is no language
 obtain special licenses necessary to
 perform that work, they explicitly 10 Elkouri and Elkouri, How Arbitration
 listed those requirements in the job Works (BNA, 5th ed.), 497 [footnotes
 omitted]:
 classification as required by Rule Frequently arbitrators apply the
 5119 principle that to expressly include
 one or more of a class in a written
 instrument must be taken as an
 See Rule 8 (carpenter truck operator, exclusion of all others. To expressly
 mason truck operator, painter truck state certain exceptions indicates
 operator steel erection truck operator); Rule that there are no other exceptions.
 9 (track welder-arc weld process, truck To expressly include some
 operator, section truck operator); and Rule guarantees in an agreement is to
 10 (equipment operator). 11 exclude other guarantees.
 8 Organization Submission at 32-33. Third Division Award 35457 (" when
 language is not clear, the tools of contract
 9 Organization Submission at 32. construction can be used.").

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which is ambiguous which would Second, the Organization argues
 allow the rules of contract that bargaining history supports its
 construction to come into play. position. 12 Bargaining history is
 Indeed, there is no language at all another tool used to ascertain the
 governing CDL and DOT intent of ambiguous language. 13
 certification requirements for aU But again, before this tool of
 foremen or assistant foremen. contract construction can be used,
 Coupled with the inherent there must first be a showing that
 managerial prerogative of the Carrier ambiguous language must be
 to determine qualifications for interpreted. And, as discussed
 positions discussed in the awards above, there is no ambiguous
 cited above - particularly with language - indeed, there is no
 respect to requirements for CDL and governing language prohibiting the
 DOT certifications - the Carrier from establishing these
 Organization cannot selectively pick qualifications.
 language in other parts of the But even if we could consider
 Agreement governing other employee bargaining history and thus giving
 classifications as it has done here the Organization the benefit of the
 and then argue that the language is doubt, the Organization's
 "clear" supporting its position or bargaining history argument would
 that the parties would have placed not prevail. The parties have offered
 similar requirements in Rule 6 had their perspectives on what occurred
 they intended those licensing and during various rounds of bargaining
 certification requirements to apply. from 1993 through 2001.14 To say
 To apply this rule of contract the least, the parties' views of what
 construction, there must first be transpired during those lengthy
 ambiguous language. The fact is negotiations, are "different". Briefly
 that there is no language which
 serves as a prohibition on the 12 Organization Submission at 35-38.
 Carrier's managerial prerogative to 13 Third Division Award 34024 ("One here the important tool for ascertaining the parties'
 determine qualifications - intent for ambiguous language is
 CDL and DOT certification bargaining history.°).
 requirements. Absent ambiguous 14 Organization Submission at 35-39;
 Declaration of Vice President R. B. Wehrli.
 language, this rule of contract Compare. Carrier Rebuttal Submission, at
 construction does not apply. 1-16.

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stated, the Organization views the vehicles to have a CDL or other DOT
 focus of the various sets of certification. 15 Given the parties'
 negotiations as directly related to divergent positions on what
 licensing requirements, while the transpired during bargaining over
 Carrier views the negotiations as the years, we cannot find that the
 occurring because of "sharp Organization has carried its burden.
 shooting" by employees who would We have no doubt that the
 let their licenses expire until a Organization believed it achieved
 position came up for bid which they the result it advances in this case.
 desired to work, at which time they However, the Organization has not
 would get their licenses renewed, sufficiently shown that the Carrier
 with the result that there were
 inflated rosters of drivers who did
 not have licenses. 15 See Gill Studios, Inc., 52 LA 506, 510
 (Madden, 1969):
    Obviously, from the divergent ... [T[here must be clearly

views of what occurred during established the specific nature of the
 agreement that was reached, and the
 bargaining as shown in this record, presence of mutual acceptance of the
 terms of that agreement. It is not
 we cannot sort out from a credibility enough to show that one side
 standpoint what actually transpired. believed an agreement had been
 y reached, for mutual acceptance
 But the Organization has raised the means that it must be proven by
 supporting evidence that the other
 issue of bargaining history as side knew it was entering into the
 supportive of its position. Having same agreement. Furthermore, the
 burden of proof rests with the party
 done so, the Organization has the claiming the existence of the
 agreement.
 burden to demonstrate more than it See also, Ajayem Lumber Midwest, 88
 had a good faith belief that the final LA 472, 473 (Shanker, 1987) [emphasis
 added]:
 product of the rounds of bargaining Even if I were wrong in my decision
 that the parol evidence rule excludes
 resulted in a conclusion consistent the evidence presented by the Union
 with its position in this case. to justify its position, the Union
 still would lose this case. This is
 Instead, the Organization must because the Union at the hearing
 show that there was a "meetfn of simply presented evidence of its own
 g understanding of what they thought
 the minds" at the bargaining table they had negotiated with respect to
 stop payment bonuses. None of the
 consistent with its position in this Union's evidence indicated that this
 case that the Carrier conceded its understanding was communicated
 to management during the
 managerial prerogative to require all negotiations: or, if it was, that
 employees who operate certain management had agreed to it.

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was in agreement with the reference to CDL qualifications. 18
 Organization's belief. Further, according to the
 Third, the Organization relies Organization, when the Carrier
 upon a past practice argument to attempted to require several foremen
 support its position. 16 Past practice to perform truck driving work that
 is another tool for unscrambling the required a CDL, the Organization
 intent of language - but, as before, protested and the Carrier thereafter
 to use this rule of construction, refrained from bulletining any
 there . must first be ambiguous foremen or assistant foremen
 language, which is not present in positions with a CDL qualification
 this case. 17 But again giving the requirement. 19 In response, the
 Organization the benefit of the Carrier counters the Organization's
 doubt, even if we assumed that past practice argument asserting
 ambiguous language existed, the that it always maintained that that
 Organization's past practice it had the right to require foremen
 argument is not sufficient to change and assistant foremen to have a
 the result. CDL or other DOT certification and
 The Organization asserts that its reasons for bulletining the
 following the execution of the positions in the way it did were
 August 16, 1993 Agreements, when because of a strike threat by the
 the Carrier bulletined truck driver Organization for asserted unilateral
 positions it specifically made changes and a desire to have the
 reference to any CDL qualifications matter finally resolved. 20 According
 and when it bulletined any other to the Carrier, " the Carrier agreed
 position (including foremen to hold off on applying it [CDL and
 positions other than truck driver DOT certification requirements] to
 foremen), the bulletins made no the Foremen and Assistant Foremen
 on the territory of this particular
 BMWE General Chairman until the
 16 Organization Submission at 39-40. 18 Organization Submission at 39; Wehrli
 17 Third Division Award 22214 ("Relative Declaration at 99 17-19.
 to the contention of the Carrier concerning 19 Organization Submission at 40; Wehrli
 past practice, we must note that Rule 6 is Declaration at 911 20-27, 35-36.
 clear and unambiguous and even if past
 practice had been established, it does not 20 Carrier Submission at 3-4; Carrier
 nullify the clear requirements of Rule 6"). Rebuttal Submission at 17.

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issue of qualifications being placed certification requirements would
 on bulletins could be resolved." 21 lose benefits given to other
 "To be a past practice, the employees who must get licenses
 conditions in dispute must be (1) and the foremen and assistant
 unequivocal; (2) clearly enunciated foremen " would be required to
 and acted upon; and (3) readily train on their own and bear all
 ascertainable over a reasonable licensing costs, all without any
 period of time as a fixed and increase in pay." 23
 established practice accepted by Again putting the ambiguous
 both parties." 22 Where the evidence language requirement aside, "[o]ne
 shows that part of the reason for of the rules of contract construction
 the Carrier acting as it did with is to interpret language to avoid
 respect to bulletining positions and illogical results."24 The Carrier
 refraining to place the CDL and countered the Organization's loss of
 DOT certification requirements in benefits argument by showing that
 the bulletins was because of a strike employees, including foremen and
 threat by the Organization or that assistant foremen are given
 the Carrier desired to hold off assistance in acquiring CDLs and
 implementing the requirements DOT certifications along with other
 until the dispute was resolved, the benefits to meet those
 Organization has not shown that requirements. 25 There is nothing to
 the asserted practice was "accepted show that those foremen and
 by both parties." Past practice has assistant foremen who may now be
 not been shown. required to obtain CDLs or DOT
 Finally, the Organization certifications will not be treated in
 contends that the result of the the same fashion.
 Carrier's interpretation will lead to We therefore conclude that the
 absurd and nonsensical results in Carrier can require foremen and
 that foremen and assistant foremen assistant foremen who may
 not covered by the various reasonably be required to operate
 agreements for whom the Carrier
 seeks to impose CDL or DOT 23 Organization Submission at 40-41.

                              24 Third Division Award 35934.


21 Carrier Submission at 4-5. 25 Carrier Rebuttal Submission at 18-19
 22 Second Division Award 13681. and statements referenced therein.

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certain vehicles as part of their job choose to require foremen or
 duties to obtain a CDL or DOT assistant foremen to obtain CDL or
 certification. other DOT certification, given the
 B. The Scope Of Our length of time that this issue has
 Decision festered between the parties, those
 We must emphasize the foremen and assistant foremen who
 limitation upon the scope of our presently do not hold such
 conclusion in this case. We have credentials shall be given a
 found that the Carrier can require reasonable amount of time to meet
 foremen and assistant foremen who those qualifications.
 may reasonably be required to. III. AWARD
 operate certain vehicles as part of Subject to the conditions set
 their job duties to obtain a CDL or forth in II(B) of the opinion, the
 other DOT certification. The Carrier Carrier can require foremen and
 is a vast, wide-ranging system and it assistant foremen who may be
 may well be that there are foremen reasonably required to operate
 or assistant foremen positions certain vehicles as part of their job
 which do not reasonably require the duties to obtain a CDL or other
 operation of vehicles that otherwise DOT certification.
 would necessitate the operator to
 have a CDL or other DOT
 certification. This decision
 obviously does not apply to those Edwin H. Berm
 individuals. Disputes in that regard 4 eutraj; Member
 will have to be addressed through
 the orderly claims handling Carrier b
 procedures. However, for those
 foremen and assistant foreman Organization Member
 whose positions may reasonably
 require them to operate such Chicago, Illinois
 vehicles, the Carrier can make the Dated: O (9 `;
 holding of a CDL or other DOT
 certification part of the
 qualifications for those positions.
 Further, should the Carrier now