PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
Award No. 85
Case No. 85
Referee Fred Blackwell
Labor Member: M. Schappaugh Carrier Member: J. H. Burton
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.]
Findings:
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 LaborAct, as amended, and that this 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 claims
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6995
WESTCOLUMBIA,
S.C.29171
(893/ 7919986
SBA No. 1016 / Award No. 85 - Case No. 85
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. 85 and Cases Nos. 82,
83, 84, 86, 87, and 88)1 and denied the claims in each case on various grounds by
separate letters in June and July 1991. Upon receipt of the Carrier's letter denying the
herein claims, dated June 11, 1991, the Organization progressed said claims to this Board
by letter dated July 22, 1991.
NATURE OF CASE
This case is comprised of claims filed on August 15, 1988, on behalf of five (5)
Claimants who allege that the Carrier permitted crossing/repair work to be performed by
an outside company, Hilltop Paving, on the Haysville and Leetsdale Grade Crossing on
1
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
FRED BLACKWELL
in the claims.
ATTORNEY AT LAW
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
/803)791-8086
SBA No. 1016 / Award No. 85 - Case No. 85
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 the merit
arguments of the parties in this matter
.2
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 pending the outcome
of Case No. 10, which concluded with Award No. 10 of this Board.
The Carrier's letter dated June 11, 1991, which advised the Organization of four
(4) reasons for the Carrier's decision that
Award No. 10 does not apply to the claims in
herein Case No. 85, sets out these reasons as follows:
"1. Claim was progressed for August 9
and 10,
1988,
however, the contractor
did
not work on August 10, 1988.
2. Hilltop Paving Company advised no laborers (Trackmen)
were utilized; they used 5 men operating a
backhoe, roller
and 3
trucks; thus, there would not have been any need for
claimants
(Trackmen) M
.
Ryan and J. Federinko.
3. Improper claimants. Claim is progressed for 5
furloughed
employees (1
Foreman, 1
Vehicle Operator, 1 Machine
2
The parties' on-property handling of these claims is comprised of Carrier letters dated
October 14, November 18, 1988, and March 2, 1989; and Organization letters dated October
FRED BLACKWELL
8 and December 13, 1988.
ATTORNEY AT LAW
P.O. BOX 6095
3
WEST COLUMBIA,
S.C.29171
(8031791-8086
SBA No. 1016 / Award No. 85 - Case No. 85
B. Putze - Has no Vehicle Operator seniority.
R. Ribet - Has no Machine Operator seniority.
4. G. Williams (Foreman) was on duty and under pay and
worked overtime on August 9, 1988."
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 June 11 letter
had not been raised on the property and thus are new subjects that cannot be
considered by this Board.
The Organization further objects that the Carrier's Submission (CS) advances
two (2) contentions that were not mentioned in the Carrier's June 12, 1991 letter and that
were not raised on the property, namely, incorrect dates (CS, page 10), and nonownership of the necessary equipment with which to perform the disputed work (CS,
page 14).
Board review of the record of the handling on the property confirms the validity
of the Organization's objection that the reasons stated in items 1 and 2 of the Carrier's
denial letter dated June 11, 1991, were not raised on the property. Accordingly, the
Board finds that these items are not properly before the Board in this proceeding and the
Board will not consider these contentions in the adjudication of the claims in this case.
The Board also finds that the contentions in the Carrier's Submission about
incorrect dates and non-ownership of the equipment needed to perform the disputed
FRED BLACKWELL
ATTORNEY AT LAW
4
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
(8031791-8086
SBA No. 1016 / Award No. 85 - Case No. 85
The Organization's objections that there was no on-property handling of the
contentions raised in items 3 and 4 of the Carrier's letter dated June 11, 1991, are not
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 on 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:
1. The work of paving crossings is not work which accrues to the BMWE
Employees and such work has consistently been contracted out without advance notice
to the General Chairman of the contracting out transaction (CS, pages 5 and 8).
2. The Claimants are improper Claimants because the Claimants would not
have been used for the disputed work because they were unavailable due to furlough, full
employment, or lack of seniority in the appropriate class (CS, page 8).
3. Even if a scope violation is found in this case, the Carrier should not be
required to compensate the Claimants because the scope violation was only made
evident by this Board's issuance of
Award No. 10 (CS, page 18).
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6895
WESTCOLUMBIA,
S.C.29171
18831791-8886
SBA No. 1016 / Award No. 85 - Case No. 85
From review of the whole record the Board concludes and finds that the claims
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 Carrier's contention that the disputed work is not work that accrues to the
BMWE is rejected on the basis of this Board's precedent
Award No. 10, which expressly
found that - -
'The
disputed work
of
paving (blacktop) and related clean-up at grade
crossings at the Cincinnati-Dayton Road and at Kemper Road on
the
Columbus to Cincinnati Mainline, falls within the
purview of the Scope
Rule
of the
confronting Maintenance of
Way
Agreement;"
The Board notes in addition that the herein disputed work is covered by the
Scope Rule's specific terms and by the Scope Rule's provision that the Scope Rule
covers work which was being performed by BMWE on the date of the Conrail-BMWE
FRED BLACKWELL
Agreement, i.e. February 1, 1982.
ATTORNEYATLAW
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
(803)791-8086
SBA No. 1016 / Award No. 85 - Case No. 85
The Board finds no merit in the Carrier's contention that the Claimants were
improper Claimants because they were unavailable due to furlough, full employment, or
lack of seniority in the appropriate class.
Prior authorities have ruled that Employees being on furlough does not make
them improper Claimants and that, in proper circumstances, the Board will issue a
compensatory award to Claimants on furlough.
Awards Nos. 9. 10. 11, and 12 of thisBoard. Employees under pay also have standing as Claimants and may be awarded
compensation where the purpose of the remedy is to enforce the integrity of the contract,
which is in part the case in the instant dispute. Likewise the fact that the Claimants did
not possess seniority in the class which they claimed on the claim dates is not fatal to
their claim. The Claimants hold seniority within the Maintenance of Way Department and
accordingly, they are each entitled to bid for and hold positions within various classes in
accordance with the terms of the BMWE Agreement. It is well settled that one of a group
of Employees entitled to perform disputed work may progress a claim requesting
compensation concerning the work even if other Employees have a preference to the
work. The fact that another Employee may have a better right to make the claim is of no
concern to the Carrier and does not obviate or dispel the fact of the Carrier's violation of
FRED BLACKWELL
the agreement.
ATTORNEY AT LAW
P.0. BOX 6095
7
WEST COLUMBIA,
S.C.29171
(80317918086
SBA No. 1016 / Award No. 85 - Case No. 85
The Board also rejects the Carrier's contention that compensation is not
appropriate in this matter because the scope violation was only made evident by this
Board's issuance of
Award No. 10. In this regard the Board notes that the Carrier had
knowledge, prior to letting the contract to Hilltop Paving, that the Organization opposed
contracting out such work and claimed that the crossing work belonged to BMWE. In
these circumstances the Carrier went ahead with the contract to Hilltop Paving at its own
risk: the fact that the controversy about the work was not determined until the issuance
of Award No. 10 is no basis for denying compensation to the herein Claimants.
Therefore, as previously indicated (supra 8), the Board will sustain the claims
on the basis that the Carrier's actions in this matter violated the work jurisdiction
provisions and the advance notice provisions of the Scope Rule in the Conrail-BMWE
Agreement.
As to the quantum of compensation, the Board has determined that the Board
cannot consider the Carrier's argument about incorrect dates because such argument
was not raised on the property (supra 4). The Board also notes that the record contains
no evidence in support of the Carrier's statement that no contractor work was performed
on August 10, 1988. Accordingly, the Board will sustain the claims for compensation, on
the basis of a joint check of the pertinent records, for work performed by the Hilltop
Paving Company on the subject crossing, up to a maximum of two (2) days, within the
time parameters of the initial claims.
In view of the foregoing, and based on the record as a whole and this Board's
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 8095
WESTCOLUMBIA,
S.C.29171
(803(791·8086
Fred Blackwell
Chairman / Neutral Member
Special Board of Adjustment No. 1016
May 1, 1995
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6095
WEST COLUMBIA,
$.C.29171
(803(791·8086
SBA No. 1016 / Award No. 85 - Case No. 85
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 for the performance by the Hilltop Paving Company of BMWE
work, 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 said company on the subject
crossing, up to a maximum of two (2) days, within the time parameters of the initial
claims.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
/1~j
" 4~4&
Fred Blackwell, Neutral Member
M. chappaugh, La or Member
Executed on, 1995
Doc\Conrail\1016-FF\85-85.501
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
1603)791-BOB6
J. E. Burton, Carrier Member
1 ljl
~o-
CARRIER MEMEBER'S DISSENT
The holding in Awards 82 and 84-88 is not surprising; the windfall granted
to numerous employees is unwarranted. These cases are virtually identical with
that reviewed by this Board in Award No. 10. In each of these crossing paving
contracting cases, the Carrier relied on its long standing practice and used a
contractor to perform the work. In none of these cases did the Carrier provide
notice to the General Chairman of its intent to contract, and provide an
opportunity for the Organization to discuss the contracting transaction. Since
issuance of Award No. 10, the Carrier has complied with the requirements of the
Scope Rule in all paving transactions.
While dismissing the Carrier's valid arguments on improper claimants,
this Award provides absolutely no rationale for distinguishing this case from that
in Award No. 83, which found that similar paving cases held in abeyance were
still "on property". The majorities' insistence on paying all Claimants, even when
they were not available for service due to their working other positions, being in
a furloughed status or even where they did not possess the appropriate
seniority, is their means of applying punitive damages where no such right exists
under the contract. A number
of
Awards, typified by Third Division Awards
30844, 30756, 28923, Public Law Board No. 4615, Award No. 3 and Public Law
Board No. 3775, Award No. 39, on this property, have properly denied payments
in such instances.
For all
of
these reasons,
I DISSENT
J. . Burton
airier Member
nom-
~s
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBER'S DISSENT
TO
AWARD NOS. 82 AND 84-88 OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
(Referee Blackwell)
One school of thought among railroad industry arbitration
practitioners is that dissents are, for the most part, not worth
the paper they are printed on because they rarely consist of more
than a sour grapes repeat of arguments that were considered and did
not prevail in the case. While the Labor Member does not necessarily adhere to this school of though, it is foursquare on point with
respect to the dissent on these cases. In a transparent attempt to
assail the unassailable reasoning of the Majority, the Carrier
Member's dissent misstates the facts, mischaracterizes the effect
of the award and then cites anomalous awards as if they represent
the dominant precedent on damages, which they do not.
The first problem with the dissent is that it relies upon the
false premise that the Carrier had a long-standing practice of
contracting out the work in question. This is a misstatement of
the facts. As the record shows, BMWE-represented employes were
performing crossing work as of the effective date of the Agreement
and continued to consistently perform it thereafter. When the
Carrier did contract out crossing work, the union filed claims,
literally dozens of ,them. It should go without saying that
contracting out which is consistently challenged by the union does
not establish a "practice".
- 1 -
Ioib-gs
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 Ry. 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.
- 2 -
la~c0-8S
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
- 3 -
101(0-85
"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.'
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.
4~
Mark J Schap gW
Labor Member
2
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.
- 4 -