PUBLIC LAW BOARD No. 7708 CASE No. 18

BROTHERHOOD OF MAINTENANCE OF )

WAY EMPLOYEES )

) PARTIES

vs. ) TO

)

UNION PACIFIC RAILROAD COMPANY ) DISPUTE

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

1. The Agreement was violated when the Carrier assigned outside forces (Kinley Construction Company) to perform routine Maintenance of Way Water Service Sub-department work (install and troubleshoot OCV valves) at the El Paso, Train way area between Mile Posts 1294-1297 of the Lordsburg Subdivision, El Paso, Texas on February 28, 2013 (System File RC-1359S-627/1583094 SPW).

   
   

2. The Agreement was further violated when the Carrier failed to furnish the General Chairman with a proper advance notice of its intent to contract out said work and when it failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the use of Maintenance of Way forces as required by Rule 59 and the December 11, 1981 National Letter of Agreement.

   
   

3. As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimant F. Edgar shall now be compensated for four (4) hours at his respective rate of pay in addition to any compensation he may have already received.”

On March 6, 2012, the Carrier provided notice to the Organization of its intent to contract. The notice of intent to contract (Carrier’s Exhibit “A1”) is reproduced, in pertinent part, as follows:

SUBJECT: This is a 15-day notice of our intent to contract the following work:

SPECIFIC WORK: Provide all labor supervision, materials and equipment necessary for plumbing, pipe work and other work as it relates to water service work. The notice will last for two (2) years from the date the service order is conference.

LOCATION: LA Service Unit, Sunset Service Unit, Roseville Service Unit.”

The notice informed the Organization that while the Carrier was available to conference the matter, it asserted that the work to be performed by the contractor was not necessarily scope covered work. At the Organization’s request, a conference was held on March 23, 2012 to discuss the notice.

The Organization filed its initial claim on April 2, 2013. The Organization alleged that the Carrier had violated the parties’ Agreement when on February 28, 2013, it utilized outside forces, i.e. Kinley Construction Company, to “inspect and troubleshoot the OCV valves...”. The Organization contended that the work was exclusive to its members and that the Carrier deprived the Claimant of “work opportunity and the compensation connected therewith”. The Organization requested that the Claimant be compensated four (4) hours at his respective rate of pay in addition to any compensation he may have already received.

In support of the Organization’s claim, a signed statement dated March 4, 2013 was submitted by the Claimant in which he stated that on February 28, 2013, the Carrier utilized Kinley Construction to make repairs to diesel OCV value in the El Paso Train way. The Claimant went on to state that this type of plumbing work has been performed by water service since 1992 when it was built by water service employees.

In addition, several signed statements from various employees going back many years (38 to 42 years) which stated that the claimed plumbing work has always been performed by Water Service employees. Moreover, photos by the Organization were submitted which depicted for example, fueling facilities since 1992 and trainway valves.

However, the Carrier was faced with an emergency which necessitated the use of contracting forces. Leaking diesel fuel pipes and valves caused the Carrier to perform the emergency assessment and inspection. As Referee Irwin Lieberman, in Third Division Award No. 20527 stated: “* * an emergency is defined as an ‘unforeseen combination of circumstances which calls for immediate action’”. Accordingly, the Carrier has broader latitude in assigning work than under normal circumstance”. Referee Lieberman went on to state that in an emergency Carrier may assign such employees as its judgment” required and “is not compelled to follow normal Agreement procedures.”

Referee Lieberman also stated that “in an emergency” the Carrier” is not compelled to follow normal Agreement procedures; and has “broader latitude in assigning work than under normal circumstances”. The Board does not find it necessary to address the other contentions raised by the parties. The claim by the Organization does not have merit

Claim denied.

AWARD

KATHERINE H. NOVAK

Carrier Member Dated:10/30/2018

HYMAN COHEN

Neutral Member

ANDREW MULFORD

Organization Member Dated: 10/30/18

**DISSENT TO FOLLOW**

LABOR MEMBER'S DISSENT TO

(Referee Hyman Cohen)

The Majority erred on multiple accounts in these awards. That being said, one (1) error warrants further comment and review as it unquestionably confirms that the decisions are outliers, go against the expectations of the parties and qualify as being palpably erroneous. In this manner, the Majority's decisions hold that the December 11, 1981 National Letter of Agreement, also referred to as the Berge-Hopkins letter, is null, void and has no longer has any force in contracting disputes. Such a finding has no valid basis and goes against the clear terms of the Agreement, past practice on this property and numerous prior arbitral awards.

To be clear, the Majority's decisions do not align with more than thirty-five (35) years of Section 3 arbitration decisions, including numerous on-property decisions, that have applied the December 11, 1981 National Letter of Agreement. The following is a small sampling of the applicable awards on this Carrier which have recognized the validity and controlling nature of the December 11, 1981 National Letter of Agreement:

confirm that more thirty-five (35) years since the parties executed the December 11, 1981 National Letter of Agreement, Section 3 arbitration panels have consistently and uniformly enforced the December 11, 1981 National Letter of Agreement. These arbitration panels have actually sustained claims based solely on the Carrier's failure to comply with the December 11, 1981 National Letter of Agreement. Obviously, awards spanning some thirty-five (35) years which apply the December 11, 1981 National Letter of Agreement as having full force (while rejecting the Carrier's position) stand as irrebuttable confirmation that the instant awards are palpably erroneous.

Before this Board the Carrier attempted to side step its contractual obligations by arguing that the December 11, 1981 National Letter of Agreement is a dead agreement due to some alleged unfulfilled reciprocal obligations. The Carrier's position is simply wrong. To be clear, Section 3 arbitral boards have consistently and repeatedly rejected this same argument by the Carrier over the past thirty-five (35) years. On this point, we invite attention to Third Division Award 40923, where veteran arbitrator W. Miller rejected the same arguments presented by the Carrier:

"The first question at issue is whether or not the vitality of the December 11, 1981 Letter of Understanding (Berge/Hopkins Letter) has expired because expectations by one party or the other may or may not have been realized. There was lengthy dissertation on the subject by the parties which set forth their respective positions. That record indicates that this argument has arisen on several occasions over the life of that Agreement sometimes boiling over into contentious debate. As that debate was waged, Neutrals continued to accept the fact that the Agreement was viable. As an example, Award 13 of Public Law Board No. 7100, involving the same parties to this dispute, issued a decision on March 4, 2009, without dissent by the Carrier, that the December 11, 1981 Letter of Understanding had been violated by the Carrier. Other Awards such as Third Division Awards 29121, 30066, 31015, 36292, 38349 and Award 6 of Public Law Board No. 7099 have also determined that the Agreement applies to this Carrier and on that basis the Board is not persuaded that the December 11, 1981 Letter of Understanding has lost its applicability."

Importantly, just a few years later, Union Pacific attempted the same misdirection regarding the December 11, 1981 National Letter of Agreement, but that time on property governed by the Southern Pacific Western Lines (SPW) Agreement (i.e., the property involved in the instant decisions). In Award 40932 (SPW), the Carrier's misdirection and attempts to side step its contractual obligations were properly rejected and it made clear that the December 11, 1981 National Letter of Agreement remained in full force and effect:

the record evidence indicates that the parties made the same respective arguments that they made in several other cases regarding the applicability of the December 11, 1981 Letter of Understanding and whether or not the Organization was required to prove exclusive reservation of scope-covered work when the dispute involves the assignment of work to outside contractors. For the sake of brevity, the Board will not discuss those issues, but instead refers the parties to Third Division Awards 40922, 40923, 40929 and 40930 wherein the Board ruled on behalf of the Organization."

To be clear, the Carrier presented this Board with nothing but conjecture to support its position that the December 11, 1981 National Letter of Agreement was no longer applicable. The Carrier's on-property correspondence in each case, as well as its the submissions to this Board lacked any evidence that the parties had mutually abandoned the agreement or other evidence which allows a reasonable mind to overcome the agreement language and the thirty­ five (35) years' worth of past arbitral awards. Perhaps most importantly, the Carrier provided no comparable arbitral precedent to support its arguments.

The Majority's willingness to cast aside the December 11, 1981 National Letter of Agreement as being (miraculously and suddenly) inapplicable constitutes an absurd outcome which serves to invalidate these decisions. Indeed, these decisions are extreme outliers which are not based in fact or logic, go against the longstanding status quo of the parties and also against the consistent arbitral authority which has consistently affirmed the validity and application of the December 11, 1981 National Letter of Agreement since the agreement was executed.

For all the above-mentioned reasons, it is clear that the Majority erred in rendering its decision and that these awards are palpably erroneous. Therefore, I respectfully dissent.

Respectfully submitted,

Labor Member