NATIONAL MEDIATION BOARD PUBLIC LAW BOARD NO. 7163
Brotherhood of Maintenance of Way )
Employes Division,IBT Rail Conference )
)
and )
)
CSX Transportation,Inc. )
case No.169
Award No. 169
Statement of Claim
"Claim of the System Committee of the Brotherhood that:
The Agreement was violated when it assigned four (4) CSXT Transportation Department employes to perform painting work and other Scope covered duties during a Clean Sweep of the Carrier's Ashtabula Yard on October 9, 2012 and failed to properly assign such work to BMWED represented forces (System File CARRICKC.112/2012-133512 CSX).
As a consequence of the violation referred to in Part 1above, Claimants J. Carrick,J. Rosario,
J. Austin and J. Durkin shall each now be allowed eight (8) hours at their respective over time rates."
Background
On October 9, 2012 the Carrier initiated and directed a "Clean Sweep" in the Ashtabula Yard located on the Erie West Subdivision. CSX assigned BMWED forces, employees from other crafts and non represented employees to remove debris and pick-up trash. Additionally, the Carrier directed Transportation Department (T&E) employees to spray paint on ties between Mile Post (MP) QD 128.4 and MP QD 130.4 which is approximately a two (2) mile stretch withinthe Yard.
Paintingties between those mile posts serves to designate the tie as a "clearance point" on a tie or a rail near a turnout which assists operating craft employees in determiningthe closest point where a car can remain near the track switch without interfering with movement on an adjacent track. In other words, the painted,marked tie signifies to a train crew, machine operator or others whether they are clear of a switch and,therefore, not fouling a right of way.
The Organization's claim was timely presented on October 30,2012; the Carrier denied the claim on December 13, 2012. The Organization handled the claim at all stages of appeal up to and including the Carrier's highest appellate officer. Conference convened on January 23, 2013.
In addition to the on-property exchanges, interested parties received notice of this matter and were afforded an opportunity to participate in this proceeding in accordance with the terms of the PLB 7163 Agreement.
Organization's Position
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The following work is reserved to BMWE members: all work in connection with the construction,maintenance, repair, inspection or dismantling of tracks, bridges, buildings, and other structures or facilities used in the operation of the carrier In the performance of common carrier service on property owned by the carrier. This work will include ... erection and maintenance of signs, such as ... warning signs, and signs attached to buildings or other structures ... yard cleaning;... and painting of machines, equipment, bridges, turntables, platforms, walkways, handrails,
buildings, and other structures or facilities; ...and any other work customarily or traditionally performed by BMWE represented employees. In the application of this Rule, it is understood that such provisions are not intended to infringe upon the work rights or another craft as established. It is also understood that this list
is not exhaustive[.]
The Scope Rule encompasses "al/ work in connection with the construction,maintenance, repair, inspection or dismantling of tracks, bridges, buildings and other structures or facilities" and such work is performed by BMWED forces. Also specified within the Scope Rule is "yard cleaning" and "painting of machines, equipment, turntables, platforms, walkways, handrails, buildings and other structures or facilities" as reserved to BMWED. In view of this wording,painting ties deals with paintingtrack and is work reserved to BMWED forces. Thus, assigning the claimed work to T&E employees violated the Scope Rule.
Along with the Scope Rule is Section 4.B.1in the Memorandum of Agreement (MOA) dated January 23, 2012 which states:
Section 4 - Yard Cleaning
Other than BMWED-represented employees may be used to perform yard cleaning work only as follows:
"Clean Sweeps" - carrier employees of various crafts working in yards may be assigned to 'clean sweep' projects whereby all employees working in a particular yard are assigned to manually pick up trash on a given day to promote safety. Employees not represented by BMWED who are assigned to participate in 'clean sweep' projects (trash* pick-up) will not be
permitted to perform Track or B&B maintenance work such as cutting brush, oiling switches, or painting.
Although the Carrier may assign other crafts to perform clean sweep duties, the work performed is restricted to trash pickup and excludes painting because Section 4.8.1clearly states that "[e]mployees not represented by BMWED who are assigned to participate in 'clean sweep' projects (trash* pick-up) will not be permitted to perform Track or B&B work such as cutting brush,oiling switches, or painting." Thus, the MOA reinforces the BMWED's reserved work in the Scope Rule. Since the work is reserved to BMWED forces, there is no infringement on the rights of other crafts.
In response to the Carrier's assertion that the work is not reserved to BMWEO forces because there is a mixed,past practice where employees from multiple crafts spray paint marks on ties to designate a clearance point and this practice falls within the Scope Rule's exception ("In the application of this Rule, it is understood that such provisions are not intended to infringe upon the work rights of another craft as established"), the Organization states the Carrier failed to prove the alleged practice. In this regard, Third Division Awards 37952 and 37976 show that past practice is an affirmative defense with the burden on the Carrier to establish. The Trainmaster's email consisting of two (2) sentences asserting a past practice is of no evidentiary import because the Labor Relations Officer directed the Tralnmaster to state there was a mixed practice.
In addition to violating the Scope Rule and MOA and failing to establish its affirmative defense of a past practice, the Carrier's decision not to assign the work to Claimants violated Rule 1- Seniority Classes, Rule 3 - Selection of Positions and Rule 4 - Seniority.
Since the claimed work is reserved for BMWED forces and Claimants have ordinarily and customarily performed it in the past, the requested remedy of eight (8) hours at the overtime rate of pay for each Claimant is warranted. Any allegation by the Carrier that the remedy is excessive must be discounted "as it was not raised or discussed duringthe on-property handling." Regardless, the Carrier's concerns about the remedy are readily cured by havingthe Trainmaster identify the four (4) T&E employees assigned to perform the claimed work and checking their time records for expended hours completing their assignment. The hours claimed are not excessive as the Ashtabula Yard's limits at MP QD 128.4 to MP QD 130.4 is approximately two (2) miles with several switches to paint as clearance points.
Carrier's Position
The claim is vague as the Organization did not provide names or other identifying information of T&E employees performing the claimed work. This thwarts the Carrier's ability to investigate the claim to determine whether the work occurred as alleged and,If it did occur, the hours consumed performing It since the painting Is by spray can. Without the Organization offeringthis information and data, the requested remedy must be viewed as excessive.
Spraying paint on a tie to designate a clearance point is not work reserved to BMWED forces; the Scope Rule does not identify or mention markingclearance points or a similar type of task. "Rather, the
painting reserved to the BMWED employees is '... Painting of machines, equipment, bridges, turntables, platforms, walkways, handrails, buildings, and other structures orfacilities' and [neither] track nor ties are considered 'other structures or facilities.m
The MOA, moreover, does not expand the Scope Rule to encompass any kind of painting. The painting reserved under the Scope Rule remains as reserved work during a clean sweep. Additionally, the Scope Rule contains an exception ("it is understood that such provisions are not intended to infringe on the work rights of another craft as established") which applies in this situation. That is, other crafts
The claimed work - - marking a tie by spraying paint on it - - is a minute part of the work performed by T&E employees and incidental to the overall task of determiningthe clearance point. Furthermore, this is not track maintenance or renewal work. "As the marking of ties only benefits train crews, It is logical it would be completed by train service employees."
Finally, Third Division Awards 38087 and 40845 and Award 12 of Public Law Board 7099 show that the Organization carries a more rigorous burden of proof in a jurisdictional dispute to demonstrate exclusivity for the claimed work. BMWED has not proven exclusivity for the claimed work and proffered no evidence showingany practice in this situation. Since BMWED did not meet its burden of proof the claim must be denied.
Parties of I nterest Positions
BLET stated that "the painting of railroad crossties, whether connected to a 'Clean Sweep' or otherwise, does not fall under the purview" of its collective bargaining agreement. Its members "are prohibited by agreement, as well as the scope of the BMWED schedule, from engaging in the practice of painting cross ties." BLET's position is that BMWED's claim must "be sustained and the remedies requested by the Claimants be granted."
UTU states that "(t)here are no work rights on the property, either historically or currently, between [UTU}, including the application of its UTU National Agreements, and the carrier that permits the painting of clearance points by [UTU] employees." UTU "does not claim any contractual work rights to any of the duties currently outlined in the BMWED claim or agreement" and "UTU is unaware of the carrier utilizingtransportation employees represented by the UTU to perform any type of paintingthat pertains to the items listed withinthe BMWED's scope provisions." Finally, "the transportation employees represented by the UTU have no contractual authority or working rules that specifically address the painting of railroad clearance ties. Consequently, we find no conflict with the current BMWED claim and our agreement. In other words, 'We have no dog in the fight."'
SMART - Transportation Division elected not to submit a response other than stating it did not "claim any right under the CSX Yardmasters CBA to perform the work" at issue in this proceeding.
Findings
Public Law Board 7163, upon the whole record and all the evidence; finds that (1) the parties to this dispute are Carrier and Employes within the meaning of the Railway Labor Act as amended,(2) the Board has jurisdiction over this dispute and (3) the parties to this dispute were afforded due notice of the hearing and participated in this proceeding. Furthermore parties of interest received notice of this matter and were offered an opportunity to participate under the terms of the PLB 7163 Agreement.
The Organization's claim alleges that four (4) T&E Department employees performed the claimed work on October 9, 2012; the Carrier acknowledges T&E employees performed this work. Uncontested by the
Carrier are the Organization's assertions in support of its claim that (1) the work performed by T&E employees occurred on October 9, 2012 between MP QD 128.4 to MP QD 130.4 within the Yard and (2) Claimants hold seniority in the appropriate classifications for this work and were qualified to perform it on the claim date. The claim is not vague on those points. Duringon-property exchanges, the Carrier disputed the requested remedy as excessive whereas the Organization states the requested remedy can be established by asking the Trainmaster to confirm the hours expended by the four (4) T&E employees.
Accordingto the Organization, the work of markingties by spraying them with paint is reserved to BMWED forces under the Scope Rule and is reinforced or supported in the MOA. BMWED relies on the following wording in the Scope Rule:
The following work is reserved to BMWE members: all work In connection with the construction, maintenance, repair, inspection or dismantling of tracks, bridges, buildings, and other structures or facilities used in the operation of the carrier in the performance of common carrier service on property owned by the carrier. This
work will include ... erection and maintenance of signs, such as ... warning signs,
and signs attached to buildings or other structures ... yard cleaning; ...and painting of machines, equipment, bridges, turntables, platforms, walkways, handrails, buildings, and other structures or facilities; ...and any other work customarily or traditionally performed by BMWE represented employees. In the application of
this Rule, it is understood that such provisions are not intended to infringe upon the work rights of another craft as established. It is also understood that this list
is not exhaustive[.] [Emphasis added.)
The Scope Rule identifies "yard cleaning" as well as "painting of machines, equipment, bridges, turntables, platforms, walkways, handrails, buildings, and other structures or facilities" and "any other work customarily or traditionally performed by BMWED represented employees" as reserved to BMWED forces. Tie marking is not identified in the same manner as "yard cleaning" but the "list is not exhaustive" and tie marking with paint is encompassed by "any other work customarily or traditionally performed by BMWE represented employees." The Organization stated in its claim, appeal and post
conference letter that Claimants have customarily performed this work in past years; this statement was not disputed or otherwise shown to be inaccurate by the Carrier during on-property exchanges. This undisputed assertion by the Organization is accepted as fact for purposes of this Award. The claimed work Is reserved to BMWED forces under the Scope Rule as "any other work customarily or traditionally performed by BMWED represented employees.''
Furthermore, the exception in the Scope Rule relied upon by the Carrier is not applicable based on the submissions from the parties of interest. As plainly and forcefully stated by UTU, "We have no dog in this fight." Under the Scope Rule the custom and tradition of using BMWED forces does not "infringe upon the work rights of another craft[.]"
In addition to the Carrier not directly rebutting or contesting the Organization's statement that BMWED forces, including Claimants, customarily perform the claimed work, the Carrier's statement or assertion of a past practice is not proven. In the circumstances presented,this critical and singular piece of evidence relied upon by the Carrier is not credited.
interpreted consistent with these findings. That is, the MOA restricts crafts during a clean sweep to trash pick-up and does not, in the circumstances and location of this claim,authorize crafts to mark a tie with paint.
Notwithstandingthe Board's finding on work reservation for BMWED forces, "[i]t is well settled that the Organization bears the burden of proof to establish each element of the claim" as noted in Third Division Award 31930 and that includes the element comprisingthe remedy requested. Remedy is as much a part of the substantive claim as the underlying alleged facts supporting the requested remedy. BMWED states that four (4) T&E employees performed the work; the Carrier acknowledged T&E employees performing the work but did not acknowledge the number of T&E employees assigned.
There is no indication in the record that the Organization requested, or attempted to request, time records of the four (4) T&E employees.
Other details are not in the record which could be reasonably obtained or established by the Organization and would enable the Board to assess hours expended in the context of the requested remedy. For example, the number of ties painted between MP QD 128.4 and MP QD 130.4 in the Yard. Claimants, having performed this work,would know this area where the claimed work occurred and could substantiate time expended by them in the past for marking ties with paint. The evidentiary support for this type of information is lacking in the record and,without it, the Board is unable to form a factual basis from the record for a remedy.
During on-property exchanges the Carrier disputed the hours expended and the Organization did not develop this evidence. Since the Organization did not meet its burden of proof on this element of the claim, the Board denies the claim.
Award Claim denied.
Patrick Halter Neutral Member
ry
Rob Miller Carrier Member
s. fif
of . . 20/,
Organization Member