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PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
Award No. 82
Case No. 82
Referee Fred Blackwell
Labor Member: M. Schappaugh Carrier Member: J. H. Burton
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Parties To Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
vs.
CONSOLIDATED RAIL CORPORATION
Statement Of Claim:
[As stated in the submission and not repeated herein.]
Finding s:
Upon the whole record and all the evidence, and after hearing on April 24, 1992, in
the Carrier's Office, Philadelphia, Pennsylvania, the Board finds that the parties herein are
Carrier and Employees within the meaning of the Railway Labor-Act, as amended, and that dais
Board is duly constituted by agreement and has jurisdiction of the parties and of the subject
matter.
Decision:
Claims sustained.
OPINION
INTRODUCTION
This case is one of a group of twenty (20) Scope
Rule`
cases that relate to
FRED BLACKWELL
ATTORNEY AT LAW
1
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
(603(791-6066
SBA No. 1016 / Award No. 82 - Case No. 82
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claims about the performance of crossing repair work by outside contractors and that was
held in abeyance, by the parties' stipulation, pending the decision of this Board on the
crossing repair/Scope Rule dispute in
Case No. 10 respecting claims arising in May 1985
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(System Docket CR-1775 and CR-1776). This Board sustained the claims in Case No.
10 and awarded compensation to the Claimants in
Award No. 10 issued on April 5, 1991;
similar sustaining rulings were issued in succeeding Awards Nos. 11 and 12, also issued
on April 5, 1991.
In June and July 1991, the parties held discussions about the group of cases
held in abeyance in light of this Board's
Award No. 10, and disposed of thirteen (13) of
the twenty (20) cases held in abeyance. The Carrier determined that Award No. 10 was
inapplicable to the remaining seven (7) cases (herein Case No. 82 and Cases Nos. 83,
84, 85, 86, 87, and 88)' and denied each case on various grounds by separate letters
in June and July 1991. Upon receipt of the Carrier's letter denying the herein case, dated
July 10, 1991, the Organization progressed said cases to this Board by letter dated July
22, 1991.
NATURE OF CASE
This case is comprised of seven (7) sets of claims filed on September 12, 985,
on behalf of six (6) furloughed BMWE Employees who allege that the circumstances in
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Case No. 83 was denied in this Board's Award No. 83 (June 23, 1992) on the ground
that the record did not show the performance of work by a contractor in the month cited
in the claims.
FRED BLACKWELL
ATTORNEY AT LAW
2
P.O. BOX 6095
WESTCCLUMBIA,
S.C.29171
(8031791-6066
SBA No. 1016 / Award No. 82 - Case No. 82
which the Carrier permitted crossing/repair work to be performed by an outside company
on the Columbus Division on August 20, 22, 23, 30, September 4, 6, and 11, 1985,
violated the Scope Rule provisions, of the Conrail-BMWE Agreement, on the subjects of
work jurisdiction and the requirement for advance notice of a contracting-out transaction. ,
Compensation is claimed for fifty-six (56) hours of straight time pay for each Claimant for
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the seven (7) claim dates.
ON-PROPERTY HANDLING
There is a threshold issue about the on-property contentions raised by the
Carrier respecting the herein claims, that the Board must determine before considering
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the merit arguments of the parties in this matter. The predicate in the Board's determination of this procedural matter is that the parties' handling of these claims on the
property ended when the parties agreed to hold this and other cases in abeyance pend-
ing the outcome of
Case No. 10, which concluded with Award No. 10 of this Board. The Carrier's letter dated July 10, 1991, which advised the Organization of five
(5) reasons for the Carrier's decision that Award No. 10 does not apply to the claims in
herein Case No. 82, sets out these reasons as follows:
"1. Improper Claimants.
Each claim
is progressed for 6
employees (2 Vehicle Operators, 2
Machine Operators
and
2
B&B
Helpers); however, the following
would
not have
stood
for recall pursuant to Section 4 of Rule 3 because they do not
possess seniority in the class in
which they
claim:
The parties' on-property handling of these claims is comprised of Carrier letters dated
September
16,
November 1, October 31,
1985,
and February
12, 1986;
and Organization
FRED BLACKWELL
letters dated October 4 and December
28, 1985.
ATTORNEY AT LAW
P.O. BOX 8095
WESTCOLUMBIA.
S.C.29171
(803/791-8088
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SBA No. 1016 / Award No. 82 - Case No. 82
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M. Keefe - Has no Vehicle Operator
seniority.
R. L. Cassidy - Has no seniority in any class
except Trackman.
J. L. McLaughlin - Has no seniority in any class
except Trackman.
G. S. Cost - Has no Class 2 Machine
Operator seniority.
L. A. Robinson - - Has no Machine Operator
seniority.
2. The contractor performed no work on the dates cited in
System Dockets CR-2012, 2013, 2016 and 2018.
3. Claims are excessive. Contractor used the following
manpower:
System Docket CR-2012 - 4 men for 5 hours
System Docket CR-2014 - 6 men for 5 hours
System Docket CR-2015 - 6 men for 7hours
System Docket CR-2016 - 5 men for 5 hours
System Docket CR-2017 - 4 men for 6 hours
System Docket CR-2018 - 5 men for 6 hours
4. Equipment used by contractor:
4 Dump Trucks
1 843 Bobcat
1 Roller
5. J. Kellems worked on all of the claim dates cited except for
August 23, 1985 (System Docket CR-2013) because he was
absent from duty."
The Organization's letter of July 22, 1991, in responding to the Carrier's letter
about its denial decision, objected that the reasons set out in the Carrier's July 10 letter
had not been raised on the property and thus are new subjects that cannot be
considered by this Board.
FRED
BLACKWELL
ATTORNEY AT LAW
P.O. BOX 8095
WESTCOLUMBIq
S.C.29171
(803/791-BO88
SBA No. 1016 / Award No. 82 - Case No. 82
The Organization's objections that there was no on-property handling of the
contentions raised in items 2 and 4 of the Carrier's letter dated July 10, 1991, are not
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supported by the record and accordingly, these contentions are properly before the
Board and will be considered in the adjudication of the subject claims.
In view of the foregoing findings about the on-property handling in this matter,
the Board notes that the contentions argued in the Carrier's submission that are properly
before this Board, for consideration in the adjudication of the herein claims, are the
following:
i (1) The claims are vague and indefinite because among the classes claimed
were "Laborer" and "Roller Operator" which classes do not exist under the
agreement and which therefore constitutes a claim for hours at a non
(2) The contractor performed no work on dates cited in System Dockets etc.
(3) The Carrier did not possess the required equipment.
(4) The disputed work does not accrue exclusively to the BMWE.
MERIT DISCUSSION AND FINDINGS
From review of the whole record the Board concludes and finds that the claims
FETED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6095
WESTCCLUMBIA,
S.C.29111
(86317918066
.. ',
SBA No. 1016 / Award No. 82 - Case No. 82
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have merit and are supported by the record.
Accordingly, in line with this Board's precedent
Award No. 10, the Board finds
that the paving and repair of crossings in dispute in this case is covered by the BMWE
Scope Rule and that the Carrier provides no justifiable reason for contracting out said
work. Therefore, the Board finds that the Carrier's actions in this matter violated the work
jurisdiction provisions and the advance notice provisions of the Scope Rule in the ConrailBMWE Agreement. A sustaining award is thus in order.
The Carrier's reasons for denying the herein claims, as indicated, are not
persuasive.
The Board rejects as unpersuasive the Carrier's contention that the claims are
procedurally defective, because the initial claims were submitted for non-existent classes
and non-existent pay rates for the class of "Truck Driver", "Laborer", and "Roller Operator".
The initial claims' use of incorrect nomenclature concerning the classifications of the
respective Claimants was properly clarified on the property by the Organization's ,
December 28, 1985 letter, which indicated that "Truck Driver", "Laborer", and "Roller
Operator" referred, respectively, to the vehicle classifications of Vehicle Operator, B&B
Helper, and Machine Operator-Class 2. On this evidence the Board finds that the
incorrect nomenclature indicated in the initial claims, e.g., Truck Driver instead of Vehicle
Operator, did not render the claim defective due to being vague and indefinite, particularly
since the incorrect nomenclature had no reasonable likelihood of obscuring from the
Carrier the agreement classes that were being claimed. The Organization's letter of
FRED BLACKWELL
ATTORNEY AT LAW
P.O. Box 6095
WESrcoLUMBk
S.C.2sm
)eo3) 7si.eoss
SBA No. 1016 / Award No. 82 - Case No. 82
December 28, 1985, was a permissible clarification of the classes being claimed and is
not deemed by the Board to constitute an amendment to the instant claim that renders
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the claims procedurally defective.
The Board also finds that the claims are not negated by the Carrier's contention
that the contractor performed no work on the dates cited in the claims. Although the
Hendy Construction Company is the contractor cited in the claims, the Organization noted
on the property that the work was performed by a subsidiary of the Handy Construction
Company, Casey Construction, and that the remuneration for the work accrued to Handy.
No rebuttal of this statement is reflected in the record. Moreover, the information
concerning work performed by the contractor, submitted by the Carrier in support of its
contention that the claims are excessive, shows that work by a contractor was performed
within the time parameters of the initial claims.
The Carrier's argument that the contracting out was necessary due to a lack of
Carrier-owned equipment is rejected for lack of record support. The Carrier violated the ,
Scope Rule's requirement to give notice to the Organization of contracting out and
thereby precluded a meeting by the parties to discuss the proposed contracting out
transaction. The leasing of equipment, and possibly other alternatives, could have been
presented to the Carrier by the Organization at such a meeting, but, as noted, the Carrier
failed to give the required notice and no meeting was held. In sum, by violating the notice
The Organization advised the Carrier during handling on the property that it had
discovered four (4) firms in the Columbus, Ohio, area that rented equipment without
FRED BLACKWELL
operators.
ATTORNEY AT LAW
P.O. BOX 6095 7
WESTCOLUMBIA,
S.C.29171
(603/791-6086
j SBA No. 1016 / Award No. 82 - Case No. 82
I,
requirement, the Carrier deprived the Organization of its opportunity to present alternate
ideas and suggestions for performing the work in house; therefore, the Carrier's
j contention about the lack of equipment does not negate the subject claims.
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The Carrier's contention concerning exclusivity has been rejected in this Board's
prior
Awards Nos. 9 (April 5, 1991) and 10, on the rationale that because the BMWE
Scope Rule covers work performed by BMWE on the effective date of the Conrail-BMWE
Agreement, February 1, 1982, the Organization does not have the burden in a Scope Rule
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claim to show exclusive, system-wide, performance of work in order to bring work under
the confronting Scope Rule. The following extract from
Award No. 10, is pertinent to this
case:
"The herein facts and issues are similar to the dispute involved in
this Board's sustaining decision in Award No. 9, Case No. 9, wherein
the Board commented as follows:
'The parties' submissions present comprehensive his
torical analysis
of
Board treatment
of
problems arising under
the Maintenance
of
Way Scope Rule, along with a large body
of
prior authorities which have ruled on these problems with
mixed results. Notwithstanding these mixed results, the
awards submitted
of
record indicate the existence
of
a grow
ing consensus favoring the proposition that the Carrier will
usually be held accountable if the Carrier has violated the
notice requirements in the Scope Rule
of
the MofWE Agree
ment, in circumstances where the disputed work has been
performed, albeit not exclusively, by Maintenance
of
Way
Employees. One
of
the apparent justifications for this prop
osition is that the Agreement text, first paragraph
of
the
Scope Rule, brings under the Scope Rule' ...work which, as
of
the effective date
of
this Agreement, was being performed
by these Employees...' This provision
of
the Scope Rule
effectively negates the Carrier's contention that the exclusivity
FRED BLACKWELL
test, on a system-wide basis, must be met to bring work
ATTORNEY AT LAW
P.O. BOX 6095
WESTCOLUMBLA,
S.C.29171
(8031791-6096
SBA No. 1016 / Award No. 82 - Case No. 82
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under the confronting Scope Rule.'
So, here too, as in this Board's Award No. 9, Case No. 9, the
Board finds that showing exclusive system-wide performance of the
I disputed work is not part of the Organization's burden; and that, as
previously stated; the Board is persuaded by the record that the herein
disputed work is within the purview of the Scope Rule of the
confronting Schedule Agreement."
The rulings in precedent
Awards
Nos.
9 and 10, of this Board will be adhered
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to in this dispute and therefore, the Carrier's argument concerning exclusivity is rejected
In view of the
foregoing, and
based on the
record as a whole and
this
Board's
prior Awards
Nos.
9. 10. 11, and 12,
the-Board finds
that
the herein
claims are supported
by
the record and,
therefore, the
claims will
be sustained and compensation will be
awarded to the Claimants as hereinafter provided.
Fred Blackwell
Chairman / Neutral Member
Special Board of Adjustment No. 1016
May 1, 1995
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6095
WESTCOLUMBI&
S.C.29171
1603/791-8666
SBA No. 1016 / Award No. 82 - Case No. 82
The record established that the Carrier violated the work jurisdiction and
advance notice provisions of the Scope Rule of the Schedule Agreement.
Accordingly the claims are hereby sustained and the Carrier is directed to
compensate the Claimants on the basis of a joint check of the Carrier's records to
confirm the dates and amount of crossing paving/repair work performed by the
contractor within the time parameters of the dates in the initial claims.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
Fred Blackwell, Neutral Member
M. Schappaugh, Labor Member J. H. Burton, Carrier Member
Doc\Conrail\ 1016-FF\82-82.501
FRED BLACKWELL
ATTORNEY AT LAW
P.O. Box
8096 10
WEST COWM61k
S.C.29171
(893/791-8086
After misstating the facts, the Carrier Member asserts that
since the issuance of Award No. 10, the Carrier has served notice
to the General Chairman when it intended to contract out crossing
work, as if to imply that Award Nos. 10, 82 and 84-88 somehow mean
that if the carrier provides advance notice it may contract out
crossing work. Of course, this is not what these awards say and
the Carrier Member's implication to the contrary is in conflict
with the plain language of the awards, the Scope Rule and the
controlling practice. The fact that Conrail may notify the General
Chairmen of its desire to contract out crossing work does not give
it the right to do so under the Scope Rule.
Finally, the Carrier Member assails the remedy by stating that
it was improper to allow compensation for employes that were
working elsewhere or for employes that were furloughed. In other
words, the Carrier Member seems to think that the Carrier should be
able to violate the Agreement with impunity because there are no
circumstances under which a monetary remedy is appropriate. One
would have thought that the day had long since passed when such an
argument would even be raised. It has long been settled by the
courts that the Board had the authority to order the remedy that it
did in these cases. See the decision of the U.S. District Court,
Eastern District of Texas in BRAC v. St. Louis Southwestern gv. Co.
(126 LRRM 2643),1 which upheld an arbitrator's award above the type
The cited case was affirmed by the U.S. Court of Appeals
for the Fifth Circuit, and the U.S. Supreme Court denied cert. on
October 13, 1987.
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of common law arguments the Carrier made in the instant cases.
Moreover, since the very inception of the NRAB and Public Law
Boards, arbitrators in this industry have been awarding monetary
damages in contracting out cases and similar cases, not only to
make claimants whole for wage loss suffered,but, more importantly,
to enforce the integrity of the Agreements. Typical of the
thousands of awards holding to such an effect are Third Division
Awards 685, 2277, 10033, 11701, 19937, 12374, 13349, 14004, 14982,
15689, 16009, 16430, 16946, 19268, 19324, 19814, 19846, 19924,
21678, 21751, 27485, 27614, 28185, 28241, 28513, 28851, 29036,
29531, 29783, 29939, 30827, 30910, 30912
and
30944. These awards
clearly demonstrate that from the early days of the Adjustment
Board right through to the present (i.e., Award 30944 is dated June
29, 1995) arbitrators have been awarding monetary remedies similar
to the remedy in the instant cases, not only to make employes whole
for lost work opportunities, but to enforce the integrity of the
Agreements.
In addition to the overwhelming precedent cited above, the
fact is that another of the arbitrators on the rotating panel of
arbitrators assigned to Special Board of Adjustment No. 1016, has
issued a finding on monetary remedies that is entirely consistent
with the instant cases. See Award No. 34 of Special Board of
Adjustment No. 1016 wherein Arbitrator Westin held:
"We regard any improper siphoning off of work from
a collective bargaining agreement as an extremely serious
contract violation, one that can deprive the agreement of
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"much of its meaning and undermine its provisions. In
order to preserve the integrity of the agreement and
enforce its provisions, the present claim will be
sustained in its entirety. Contrary to Carrier's
contentions, we do not find that the absence of a penalty
provision or the fact that claimants were employed full
time on the five dates in question deprives the Board of
jurisdiction to award damages in this situation."
Moreover, the findings of Special Board of Adjustment No. 1016
concerning the payment of monetary remedies to enforce the
Agreement have consistently been cited with favor by the NRAB in
cases involving this Carrier. For example, see Third Division
Awards 29381 (Referee Fletcher) and 30181 (Referee Marx) which cite
Award No. 41 of Special Board of Adjustment No. 1016 with favor
concerning a monetary remedy for fully employed claimants .z
Award Nos. 82 and 84-88 are well-reasoned awards that draw
their -essence from the plain language of the Agreement and set
forth a remedy consistent with literally thousands of awards and
dominant legal precedent. For all of these reasons, the Carrier
Member's dissent falls short just as its initial cases fell short
and should be given the same amount of credence, which is to say
none.
Mark J Schap glv
Labor ember
It is worth noting that the former Carrier Member of
Special Board of Adjustment No. 1016 did not file a dissent to
Award No. 34 and the present Carrier Member of Special Board of
Adjustment No. 1016 did not file a dissent to Award No. 41.
Moreover, the Carrier Members of the NRAB did not file a dissent to
Third Divisions Awards 29381 or 30181.
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