PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
Award No. 87
Case No. 87
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 6095
WESTCOWMBIA,
S.C.29171
(8031791.8086
SBA No. 1016 / Award No. 87 - Case No. 87
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. 87 and Cases Nos. 82,
83, 84, 85, 86, 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 claims filed on August 21, 1989, on behalf of five (5)
furloughed Claimants who allege that the circumstances in which the Carrier permitted
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
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
(8031 791-8086
SBA No. 1016 / Award No. 87 - Case No. 87
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. 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 .z
The Carrier's letter dated June 12, 1991, which advised the Organization of the
reasons for the Carrier's decision that
Award No. 10 does not apply to the claims in
herein Case No. 87, sets out these reasons as follows:
"1. Improper Claimants. Claim alleges unknown contractor utilized 2 vehicle
operators, 2
machine operators and 1 foreman to work at the locations
cited in the initial claim, however, the following would not have stood for
recall pursuant to Section 4 of Rule 3 because there was no need for their
class or they did not possess seniority in the class in which they claim:
2
The parties' on-property handling of these claims is comprised of Carrier letters dated
September 19 and November 13, 1989, and February 9, 1990, and Organization letters dated
August 21, September 30, December 1, 1989 and March 6, 1990.
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6095
WEST COLUMBIA,
S.C.29177
(803/791-8086
SBA No. 1016 / Award No. 87 - Case No. 87
R. Ribet - Has no Vehicle Operator seniority.
B. Porter - Has only Trackman seniority.
C. Beveridge - Has only Trackman seniority.
2. Claimant D. Williams was not furloughed, he worked and/or was on
vacation on the dates cited."
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.
The Organization further objects that the Carrier's submission (CS) advances
additional contentions that were not mentioned in the Carrier's June 12 letter and that
were not raised on the property, namely: continuous claim (CS, page 5), incorrect dates
(CS, page 11), and non-ownership of the necessary equipment to perform the disputed
work (CS, page 15).
Board review of the record of the handling on the property confirms the validity
of the Organization's objection that the contentions, set out in the Carrier's letter of June
12, 1991, were not raised on the property and thus such contentions will not be
considered by the Board in the adjudication of the herein claims.
The Board also finds that the contentions in the Carrier's submission about
continuous claims, incorrect dates, and non-ownership of the equipment needed to
perform the disputed work, were not raised on the property and thus these contentions
will not be considered by the Board in the adjudication of the herein claims.
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
(803(791.6066
SBA No. 1016 / Award No. 87 - Case No. 87
1. The work of paving and repairing crossings is work that has historically been
performed by "off-railroad" companies in past years.
2. 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. 1q.
MERIT DISCUSSION AND FINDINGS
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 work of paving crossings has historically been
FRED BLACKWELL
performed by "off-railroad" companies does not justify the contracting out of such work
ATTORNEY AT LAW
P.O. BOX 6095
WESTCOLUMBIA,
S.C.29171
18031791-8086
SBA No. 1016 / Award No. 87 - Case No. 87
"...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
Agreement,
i.e. February 1, 1982.
In view of this finding, it follows that the Carrier was subject to the Scope Rule's
requirement to give the General Chairman fifteen (15) days advance notice of a
contracting out transaction.
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.
FRED BLACKWELL
In view of the foregoing, and based on the record as a whole and on precedent
ATTORNEY AT LAW
P.O. BOX 6095
WEST COLUMBIA,
S.C.29171
(803) 791-8086
SBA No. 1016 / Award No. 87 - Case No. 87
Awards Nos. 9. 10. 11. and 12,
the Board finds that the herein claims are supported by
the record (supra 5) and, therefore, the claims. will be sustained and compensation will
be awarded to the Claimants for work by outside companies that is shown by a joint
check of the pertinent records to have been performed at the locations cited in the claims
during the month of August 1989.
vv
Fred Blackwell
Chairman / Neutral Member
Special Board of Adjustment No. 1016
May 1, 1995
FRED BLACKWELL
ATTORNEYATLAW
7
P.O. BOX 6095
WEST COLUMBIA,.
S.C.29171
(803)797-8086
SBA No. 1016 / Award No. 87 - Case No. 87
AWARD
The record established that the Carrier violated the work jurisdiction and advance
notice provisions of the Scope Rule of the Conrail-BMWE Agreement.
Accordingly, the claims are hereby sustained and the Carrier is directed to
compensate the Claimants for work by outside companies that is shown by a joint check
of the pertinent records to have been performed at the locations cited in the claims during
the month of August 1989.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
v
i ~ w
Fred Blackwell, Neutral Member
. H. Burton, Carrier Member
M. Sch paugh, Labor Memqr
Executed on
, 1,12
1995
Doc\Conrail\1016-FF\87-87.501
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 8095
WESTCOLUMBIA,
S.C.29171
J803)791-8086
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
Carrier Member
f o1
to - g'7
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_
tblb-~7
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 BRAG v. St. Louis Southwestern RV. 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 -
lo~b-87
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 effectare 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 -
io(C,- 13-1
"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.
Oar
Mark J Schap g
Labor Member
z 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 filea dissent to Award No. 41.
Moreover, the Carrier Members of the NRAB did not file a dissent to
Third Divisions Awards 29381 or 30181.