PUBLIC LAW BOARD No. 7708 CASE No. 5

BROTHERHOOD OF MAINTENANCE OF )

WAY EMPLOYEES DIVISION, IBT RAIL ) PARTIES

CONFERENCE ) TO

vs. ) DISPUTE

UNION PACIFIC RAILROAD COMPANY )

(FORMER SOUTHERN PACIFIC RAILROAD )

COMPANY) )

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

1. The Agreement was violated when the Carrier assigned outside forces (Mobile Express Machinery Company) to perform Maintenance of Way and Structure Department work (plumbing work in connection with a new fire suppression system) at the

   196 Fueling Facilities between Mile Posts 1294 and 1297 on the Lordsburg Subdivision at El Paso, Texas on M a r c h 2 5 a n d 2 7 , 2 0 1 3 ( S y s t e m F i l e RC-1359S-640/1585223 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 the aforesaid work and failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the use of its 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 three (3) hours at his respective rate of pay for the work performed by the Mobile Express Machinery Company.”

On March 6, 2012, the Carrier, by letter, notified the Organization of its intent to contract as follows:

Location: LA Service Unit, Sunset Service Unit, Roseville Service Unit.

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 years from the date the service order is conference.

The notice also informed the Organization that while the Carrier was available to conference the matter, the contracted work was not necessarily scope covered work. At the Organization’s request, a conference was held on March 23 to discuss the notice.

On April 26, 2012, the Organization alleged that the Carrier violated their Agreement on March 27 and 28, 2012, when it utilized an outside contractor, S. P. Plumbing Co. to make “repairs to the urinals and showers in the side locker room at the Roundhouse * *.” The organization claimed that the work was exclusive to its members; and that the Claimant was deprived to [a] work opportunity and compensation to which he is entitled by virtue of his seniority rights.

In a letter dated May 7, 2013 to the Carrier, the Organization submitted a claim on behalf of Fernando Edgar, in which it alleged that the Carrier violated the Agreement when it utilized a contractor Mobile Express Machinery Company to perform the work of plumbing in a new fire suppression system at the Diesel Tanks located at the 196 Fueling facilities between mileposts 1294-1297 of the Lordsburg Subdivision in El Paso, Texas. Specifically, the Organization has alleged that the Carrier violated Rules 1, 2, 3, 5, 6, 12, 16, 26, 28, 59 and the December 11, 1981 Letter of Understanding.

Such work belongs to the Claimant, according to the Organization. Had the Carrier assigned the Claimant to perform the three (3) hours of work, he would have been fully qualified to do so.

The Carrier has complied with the various terms of Rule 59 which govern subcontracting. Advance written notice of intent to contract out work was given by the Carrier not less than 15 days prior to the contracting transaction as required by Rule 59 (a). Thus, on March 6, 2012 the Carrier provided

notice and on March 25 and 27, 2013, the Organization claims that the Carrier utilized Mobile Express to perform the work in dispute. At the request of the Organization, a conference was held on March 23, 2012, as provided b Rule 59 (b).

In support of its claim, the Organization submitted two

(2) statements from the Claimant. In his first statement, the Claimant stated that at the Carrier utilized the contractor to make repairs to the Fire Suppression System located at the El Paso Fueling facility. He added that this has always been maintained by Water Service for several years; and this type of work has been the past practice of the Water Service.

No documentation was provided to support the Claimant’s statement. Nor did the Claimant specify the number of hours spent by the employees of the contractor in performing the work . In his second statement, dated “10/10/12”, the Claimant referred to the “repair of several swamp coolers”. The reference to swamp coolers is not relevant to the claim which expressly alleges work involving the plumbing of a new fire suppression system.

The Organization also provides various letters over the course of 38 years containing uniform language in which they generally state either observing Water Service personnel repairing/maintaining various types of plumbing work or that the scope work of new installations and maintaining all pumping structures for all buildings and structures were performed by Water Service personnel. Moreover, the Organization provided photos of unidentified employees at various facilities alleged to be on the Carrier’s premises which have no relevance to the claim presented by the Organization.

By its claim, the Organization contends that the work in question historically and exclusively belongs to Water Service employees. However, no provision of the Agreement has been directed to the attention of the Board that the work in dispute is exclusively restricted to the Water Service Department.

The Carrier, on the other hand, has established a historical past mixed practice of contracting out such work.

In support of this conclusion, the Carrier has provided a listing of various Service Orders involving and relating to plumbing/pipe work dating back at least to 1996, Rule 59 (c) recognizes the Carrier’s mixed practice, by providing that “nothing in this rule will affect the existing rights of either party in connection with contracting out”. Reinforcement of the Carrier’s mixed practice is also established by the May 14, 1999 letter to the then General Chairman Ash. The letter provided 30 files that listed various subject areas of contracting out, including Plumbing/Water Service work. The letter memorialized the Carrier’s past practice, to which the Organization has failed to deny or raise an objection.

The Organization relies on the Berge-Hopkins Letters of December, 1981. Clearly, it has no force and effect. The LOU created reciprocal obligations which were not carried out. Accordingly, by the 1984 negotiations, the LOU lacked mutuality and no longer had any validity. It is of great weight that the LOU was not raised by the Organization when Chairman Ash received the May 14, 1999 letter of mixed practice by the Carrier.

The Organization claims that the contracting out by the Carrier violates Rules 1, 2, 3, 5, 26, 28, 59 and the December 11 LOU, which has previously been considered. Based upon the record, the Organization has failed to prove by the required preponderance of evidence that the Carrier violated any of the Rules claimed by the Organization.

AWARD

Claim denied.

KATHERINE 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