BEFORE PUBLIC LAW BOARD NO. 7566 CASE NO. 173
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION – IBT RAIL CONFERENCE
and
WISCONSIN CENTRAL LTD.
STATEMENT OF CLAIM
Carrier’s File WC-BMWED-2018-00026 Claimants: P. Cournoyer, J. Ploof, W. Brokaw
“Claim of the System Committee of the Brotherhood that:
The Carrier violated Rules 1 and 13 of the Agreement when it supplanted its existing workforce in an effort to deny an overtime work opportunity for Messrs. P. Cournoyer, J. Ploof and W. Brokaw by assigning non-agreement employes, employed by Stack Brother’s as well as Carrier management to perform the duties of repairing, dumping ballast, inspecting and cleaning up a collapse of the railroad grade embankment, on the Superior Subdivision at approximately Mile Post 468.1 which is commonly identified as the Stellton Hill on October 15, 2018 and continuing through October 17, 2018 (Carrier’s File WC-BMWED-2018-00026 WCR).
As a consequence of the violation referred to in Part 1 above, Claimants P. Cournoyer, J. Ploof and W. Brokaw shall now be compensated at the applicable time and one-half-and double-time rates of pay at the applicable rates of pay of each of their respective positions for a total of thirty-five (35) hours.”
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934.
Public Law Board 7566 has jurisdiction over the parties and the dispute involved herein.
The Organization maintains that numerous Rules govern this claim. Rule 1 provides for the Scope of work and recognizes that that work generally recognized as Maintenance of Way work would remain Maintenance of Way work. The work at issue was usual and customary work and therefore the work of the Maintenance of Way employees. Rule 13k provides that the Carrier cannot change the work generally recognized as belonging to Maintenance of Way employees, yet the Carrier did. Rule 13L provides the expectations of the parties and what must be met by the Carrier. Rule 13M prohibits supplanting overtime opportunities for Maintenance of Way employees.
The Organization cites PLB 7566 Award 50 and Award 62 as instructive. In those matters, the Organization prevailed on a claim that the Maintenance of Way work was supplanted by outside forces.
The Carrier responds that a catastrophic event occurred when track was washed out and immediate repairs were needed. Specialized equipment was needed and supplied by the outside forces after a sudden, unforeseen event brought all Carrier transit on the line to a halt. The Carrier responded in a December 21, 2018 letter that included:
The work you have outlined was not performed by contractors, WC BMWE employees were utilized to do all possible work including obtaining track protection, performing inspections and dumping ballast. Where contractors were utilized it was due to the fact that specialized equipment was required, which we did not have available. BMWE employees performed all work that did not require specialized equipment. Our employees provided track authority, track inspection, and dumped ballast. The contractors used backhoes and dozers to place the ballast. The contractors also used specialized equipment to load and unload dump trucks. Our employees did the work we could do with the equipment we had, the contractors did the work that required specialized equipment.
The Carrier continues that any Organization argument about the emergency nature of the work not being asserted during the handling of the claim should be rejected. The Carrier memorialized the defense that it was an emergency warranting the use of outside forces in the post-conference letter to the Organization. The situation required specialized equipment that precipitated the use of outside forces. Further, there was no damage caused because Organization employees were fully employed and did not lose any work as a result of the work of the subcontractor.
The Organization responded in a January 8, 2019 letter, which provides in pertinent part:
The second and final defense from the Carrier was that the contractors were utilized to perform BMWED work due to fact that they used specialized equipment. “The contractors used backhoes and dozers to place the ballast. The contractors also used specialized equipment to load and unload dump trucks.”
Backhoes, dozers and dump trucks are not specialized equipment. In fact, a quick review of Rule 3 Paragraph A of the Collective Bargaining Agreement clearly shows that all three of the machines/positions listed in the Carrier’s letter are recognized and classified in said rule. Backhoe and Dozer are recognized and classified as a Machine Operator C. Tandem Axle Truck Driver (Dump Truck) is recognized and classified as a Machine Operator B. Rule 3 Paragraph A of the Collective Bargaining Agreement has been attached for ready reference.
This work in question is core BMWED work as contemplated in the scope rule of the agreement. For the Carrier to argue that either management officials with no track experience whatsoever, or non-railroad, non- agreement contractors are somehow more qualified than BMWED railroad workers who quite literally perform this work for a living day in and day out, is simply ludicrous.
Rule 1 provides:
These rules shall be the agreement between the Canadian National Railway Company (former Wisconsin Central Ltd.) and its employees of the classifications herein set forth represented by the Brotherhood of Maintenance of Way Employes, engaged in work generally recognized as Maintenance of Way work, such as, inspection, construction, repair and maintenance of bridges, culverts, buildings, and other structures, tracks, fences, and roadbed, and shall govern the rates of pay, rules and working conditions of such employees. This paragraph shall neither expand nor contract the respective rights of the parties, nor infringe upon the contractual rights of other railroad crafts in effect on the date of this agreement.
Rule 13 Paragraph N provides:
The Company will not use the provisions of this rule to use outside contractors in a way that would supplant the use of the existing workforce during off hours and on rest days in an effort to deny the existing workforce overtime opportunities. This commitment does not require the company to call individuals from another location to perform work in lieu of using an outside contractor.
The Carrier handling of the claim indicated first that there were no outside forces used to perform the work and second, that the outside forces performing the work were doing so because they had specialized equipment.
The Carrier admitted that outside forces were doing the work. The question is whether that was a violation of the Agreement. The evidence shows that there was an embankment collapse and that Maintenance of Way employees were on scene performing work to repair the embankment. Track equipment was used by outside forces because it was unavailable in the local inventory.
Claim denied.
Patrick Crain Adam Gilmour
Carrier Member Organization Member
_
Brian Clauss Neutral Member
Dated: December 20, 2023
EMPLOYE MEMBER’S DISSENT TO
AWARDS 173 AND 176 OF PUBLIC LAW BOARD NO. 7566
(Referee Brian Clauss)
In these cases, I must dissent to the Majority’s findings. Here, the Majority ruled that the Carrier was permitted to contract the disputed work to outside forces based on an erroneous and unproven assertion that the work somehow required specialized equipment which was not immediately available to the Carrier.
Rule 13N of the parties’ Agreement firmly states that the Carrier will not use the provisions of Rule 13 in a way that would supplant the use of the existing workforce during off hours and on rest days in an effort to deny the existing workforce overtime opportunities. The records very clearly establishes, and it is furthermore not disputed by the parties, that the Carrier’s own Maintenance of Way forces regularly perform this exact work as part of their regular assignments using ordinary Carrier-owned equipment. As such, it is clear that the Carrier supplanted its workforce when it contracted the work to outside forces in these cases under an alleged need for specialized equipment.
Moreover, the records are entirely void of any evidence that would suggest that the disputed work was somehow in response to any sort of emergency condition and/or situation. In fact, the Carrier makes no emergency assertion whatsoever. The Majority stated that “[T]he Carrier responds that a catastrophic event occurred when track washed out and immediate repairs were needed. ***” However, this is simply not true and is easily disproven by a simple review of the records. The on-property handling of the claims contain no mention of an emergency or “catastrophic event” of any kind. In fact, the only time the word “emergency” is ever used is within the Organization’s submission wherein we affirm that no “emergency” defense was ever raised by the Carrier and that the work was of a non-“emergency” nature. Furthermore, the word “catastrophic” does not appear anywhere within the records and instead only appears once within the Carrier’s submissions, which were written well after the closing of the records, within a sentence that does not assert that the disputed work arose due to an emergency condition or situation.
In rendering its decisions, this Board is limited to the on-property record of each case, and it is improper to speculate on events which may or may not have occurred and which are outside of the written record. The Majority erred when it considered an emergency defense by the Carrier which was neither raised nor proven anywhere within the on-property handling of the claims.
Even if special equipment remained as an exception to Rule 1-scope (which it does not) there is no probative evidence that the Carrier’s own equipment was not fully capable of accomplishing all of the subject work or that the Carrier made a reasonable attempt to rent or lease the necessary equipment and, therefore, the Carrier is precluded from relying on a specialized equipment defense.
Employe Member’s Dissent
Awards 173 & 176 of PLB No. 7566
Page 2
In fact, in our appeal letters dated January 8, 2019, the Organization challenged the Carrier’s assertion that the work required specialized equipment not already possessed by the Carrier in that no evidence or documentation had been provided to establish as much. Nevertheless, the Carrier failed and refused to provide any evidence to support its position whatsoever. Numerous awards including National Railroad Adjustment Board (NRAB) Third Division Awards 18447, 28724, 36932, 37047, 37677, 41106 and Award 73 of PLB No. 5606 have established an arbitral precedent that when the Carrier fails to comply with a reasonable request for specific documentation, it does so at its own peril. The record of the instant cases are entirely void of any documentary evidence which would establish that the disputed work required any equipment other than what was already in the Carrier’s inventory and historically and customarily used by the Carrier’s own Maintenance of Way forces to perform identical work to that of the disputed work in these cases.
While the parties’ Agreement does contain certain circumstances under which the Carrier may utilize contractor forces, it contains no language whatsoever which would permit the Carrier to assign Scope-covered work to outside forces based on an alleged need for specialized equipment. It is beyond the scope of this Board to either augment or to ignore the plain language found within the parties’ Agreement, and the Majority further erred in its analysis when it found that the Carrier was permitted to contract out the disputed work based on a reason that does not exist within the clear language of Rule 13 or anywhere else in the Agreement for that matter.
Moreover, even if the Carrier were able to rely on this specialized equipment defense (which it is not), the Carrier does not make the argument that it does not possess the necessary equipment. Rather, it merely states that it did not have the equipment “immediately available” at the time the disputed work occurred. Poor planning and mismanagement of resources by the Carrier does not therefore give it carte blanche to contract any and all work it sees fit to outside forces, nor does it stand to ignore the clear language of Rules 1 and 13 and allow for the Carrier to supplant its workforce.
For these reasons, I must respectfully dissent.
Adam Gilmour Employe Member