IN THE MATTER OF ARBITRATION
PURSUANT TO SECTION 11 OF THE
RECOMMENDATIONS OF PRESIDENTIAL EMERGENCY
BOARD NUMBER 219
Joseph A. Sickles
Arbitrator
SECTION 11 OF THE RECOMMENDATIONS 08
PRESIDENTIAL EMERGENCY BOARD NO. 219
as imposed upon the Parties by
PUBLIC LAW 102-29
Subsequent to unsuccessful Railroad industry collective bargaining negotiations on a number of items, various issues were submitted to Presidential Emergency Board No. 219 (herein "PEB 219") which was charged with the task of making recommendations to settle the disputes. One of the items at issue before PEB 219 was the demand of the Carriers for the establishment of system and regional gangs.
On January 15, 1991 PEB issued its findings and recommendations. Section il recommended contractual changes that would allow system and regional gangs to operate over specified territory of the carrier to perform work that is programmed during any work season for more than one seniority district.l
In addition to the expedited arbitration provisions (See footnote 1) the PEB recommended the creation of a Contract Interpretation Committee (herein "CIC") to resolve disputes over the application or interpretation of the pertinent recommendations.
Negotiations continued after the issuance of the PEB 219 report, to no avail, and ultimately there was a one (1) day strike which was settled on April 17, 1991 by a congressionally imposed settlement in Public Law 102-29.
1 After a required notice is served upon the Union of intention to establish the gangs, if the parties are unable to negotiate an implementing agreement, the parties must engage in final and binding arbitration of the dispute.
clarifications and modifications to the PEB 219 recommendations, and if the parties could not reach a voluntarily agreement, the PEB 219 recommendations (as clarified and modified) would assume the status of an agreement between the parties as though reached through negotiations under the Railway Labor Act.
The parties were not able to reach a voluntary agreement and the "imposed agreement" became binding.
An initial Burlington Northern Railroad Company (herein "BN" or "Carrier") proposal was presented on October il, 1991 stating an intent to establish regional and system production gangs pursuant to Section 11, PEB 219. The Brotherhood of Maintenance of Way Employes (herein "BMWE" or "Organization") advised the Carrier that the notice was premature and improper for a number of reasonsa but BMWE (while preserving its positions) did present counterproposals and met with the Carrier. No implementing agreement was reached. A January 29, 1992 "supplemental" notice by BN, meetings and correspondence also transpired, without successful conclusion.
Thereafter, the parties selected the undersigned Arbitrator to serve pursuant to-Section 11, PEB 219.
Subsequent to conference telephone call and correspondence between this Arbitrator and the Parties, a procedural hearing was conducted in Chicago, Illinois on April 9 and 10, 1992 and a "DECISION OR PROCEDURAL ISSUES was issued on April 20, 1992 which determined that (1) a definition of a regional production gang (and
2 a) jurisdiction of the Arbitrator was still unresolved, b) the notice did not contain sufficient identifying information, c) "production gang" was undefined, etc.
related questions) "...does not present a procedural question and will not be addressed in this Award" and (2) the undersigned found jurisdiction to consider BMWE proposals raised during the thirty (30) day period if they are reasonably related to BN's proposals under the "broad jurisdiction" granted to me.
The Parties submitted further Briefs, argumentation and documents. Hearings on the Merits of the dispute were conducted on May 4 and 5, 1992 in Fort Worth, Texas, and on May 21 and 22, 1992 in Denver Colorado, at which time all parties were present and represented and were afforded full opportunity to present their respective positions.3
The parties have referred to a CSX/BMWE January 6, 1992 Award (and an accompanying agreement) issued pursuant to Section 11 of the PEB 219 Recommendations.
The parties have characterized the CSX Award in various manners as it affects the resolution of this dispute. However, our perusal of the Award shows that; "For the most part, the parties' proposals are in substantive accord, and the resulting Agreement is consistent therewith" (Page 5). The Award does not extensively describe the basis for resolution of the remaining contested matters. I do not, in any manner, criticize the Award, or the parties' efforts to settle many of the matters without recourse to a third party, but at the same time, the precedential value of the
For reasons stated in Footnote # 13, no transcription of the proceedings were taken, and the Undersigned was specifically precluded from permitting oral evidence.
In its most basic terms this dispute presents the question of (1) a definition of a regional production gang if, in fact, such a definition is necessary, and (2) the terms and conditions which should be imposed upon the parties.
During the procedural aspect of this dispute I considered various aspects of the parties contentions in this regard, and I noted at page 8 of the Procedural Decision that:
However, the Carrier suggests to me that there is absolutely no necessity to issue a definition since Article XIII (a) negates any such a requirement. That section mandates a ninety (90) day written notice of intention to establish regional or system-wide gangs for the purpose of working over specified territory:
There is a strong indication that most of the agreement provisions are the result of "give and take" negotiations between those parties, and inclusions here of certain items may very well ignore "quid pro quo" considerations which are pertinent to the provisions.
to be performed by the gangs discussed in its October 11, 1991 notice is programmed, and will encompass more than one seniority district. Thus, those two ingredients automatically constitute the gangs as "regional or system-wide gangs for the purpose of working over specified territory of the carrier or throughout its territory..."
The Carrier's above stated position is interesting to consider as an isolated concept of language interpretation, but such an exercise would be purely academic in this dispute since it ignores the existence of the Contract Interpretation Committee which was established by PEB 219 (and imposed upon the parties) to resolve disputes over the application and interpretation of the pertinent Board 219 recommendations. The CIC has issued Answers to specific questions posed to it concerning these gangs.
At Page 6 of the Decision on Procedural Issues, I cited the organization's Issue No. 1, as follows;
BMWB PROCEDURAL ISSUE #1
DEFLVITION Or "REGIONAL PRODUCTION GANG"
If the Carriers) argued to the CIC the very limited definition of a production gang, or the total lack of any need to issue a definition, the Answers cited above certainly do not convey any CIC agreement with the concept.
The Chairman of the CIC was a member of the PEB 219 that authored Article XIII (a). If it were the intention of the PEB to permit a regional or system-wide gang to do any work which is programmed and transcends seniority districts, it would have been a very simple task for the CIC Chairman to have so stated, rather than to issue the cited Answers which defer a definition to ultimate arbitration. Accordingly, it is necessary for me to explore the record to ascertain a reasonable definition, taking into account the positions and contentions presented to me,as well as to the various authoritative bodies which have taken testimony and evidence prior to the creation of this particular arbitral authority.s
When the organization sought a definition as a "procedural matter" it suggested certain material to assist me in issuing a definition, such as the language of Section 11, PEB 219 itself,
5 As I read the pertinent CIC authority, I find an "affirmative mandate" to resolve the question of a definition, or at least to determine if the gangs in question are, or are not, production gangs. The Organization has a right to such a conclusion, and this is the "forum" designated to act.
statements made by Board members, correspondence from the Carrier, testimony before the Special Board created to review the Board 219 recommendations, asserted Carrier testimony regarding numbers of employees and type of equipment as well as the size of the project, track area to be serviced, etc. It has also cited a July 26, 1989 New York Dock Award in a dispute between the Norfolk and Western and the BMWE, a Trade Publication6 and humanitarian concerns.
The Carrier disputes that these presentations have a reasonable bearing upon the ultimate definition, and stresses that it was granted the rights to establish and effectively use the gangs, at an economic penalty, and it is imperative that there be a continuity of gangs with attendant flexibility. Thus, any definition must not hinder its operation as authorized by PEB 219.
The Organization has agreed that twenty (20) of the forty-two (42) gangs established in the Carrier's notification are production gangs, since they also fall within the Organization's definition of a production gang. The remaining twenty-two (22) gangs are in a "limbo" status between the parties, whose contentions are polarized to be the lowest possible denominator to the highest restrictive definition. (See Pages 46-48, BMWE's 4/1/92 Procedural Brief).
To state a definition one needs only to refer to CIC Answers. The Carriers' presentation to PEB 219 stressed that the industry needed to establish production gangs, regional gangs and systemwide gangs, and the primary witness:
Recognizing that the above cited illustrations would, apparently, meet the definition of "production gang", the CIC refused the invitation to fashion a hypothetical definition in the absence of specific facts. (See Answer to Issue No. 2). See also Answer to No. 7.7
Based upon the evidence before me, I conclude that Board 219 intended a definition within the framework of the CIC answer to Issue No. 2. which incorporated Carrier testimony. Thus I determine that a production gang is:
But, having stated the general definition does not resolve the dispute presented to me in this case since it merely perpetuates the disagreement between the parties as to what may be included
The Carrier insists that the testimony before PEB 219 and the conclusions of the CIC, especially with regards to "numbers of employees" on gangs, are/were merely "examples" and "illustrative", but certainly were not "definitional". It also points out that the record is replete with references to the fact that the term "production gang" and related components, are well known in the industry and thus there is no need to define the term(s). I disagree. The evidence may be "illustrative" but it is pertinent to consider same in an effort to ascertain the intention of PEB 219 when it authored language specifically permitting extensive use of gangs across seniority districts. If, as BN states, "production gangs" are well known in the industry, it may not now argue that Carrier witnesses misstated the basic ingredients of such gangs in their testimony.
During. the Hearings, Carrier reiterated the above cited potentials. I do not find these types of deviations fatal to the carrier's creation of the gangs as long as there is a reasonable basis for the deviation and/or alteration.
The degree of cooperation between these parties has not been exactly ideal in all aspects of this dispute, and if the parties are not able to agree upon certain Carrier alterations, then of course, there is available action to redress any asserted wrong concerning the changes, and the Carrier shall have certain burdens to show the basis for the change(s). I can presume a good faith effort to comply, but I certainly can not insure such a result, any more than I can decide disputes that are not factually before me for resolution.
It is now incumbent upon the Carrier to establish its PEB 219 production gangs within the parameters of the definition and 13
refinements discussed above, and if, in doing so, it violates this
9 A significant amount of time has been devoted to this case by the undersigned, but nowhere near as much as the time, efforts and expenses extended by the parties. I urge the parties to take every reasonable effort, and to show reasonable patience, to permit the rules an opportunity to work to everyone's benefit and advantage. In this regard, I have hesitated to mandate a continuing "working committee" to explore enforcement on a continuing basis since the parties have stated a reluctance to have an internal dispute resolution provision. However, I urge the parties to establish such a committee on a voluntary and continuing basis.
BN argued in the procedural portion of the case that BMWE's counterproposals are not subject matter related because PEB 219 has already considered and foreclosed and/or precluded further consideration and jurisdiction of those subjects in this arbitration. Further, such proposals are barred by the moratorium provisions of PEB 219 and PL 102-29.10
PEB 219 chose to recommend, and thereby create, the CIC and vested in it "final and binding disposition."
The CIC, on November 6, 1991, decided that the arbitrator's jurisdiction is not limited to seniority questions, but in fact is
-much broader, i.e. "...all subject matters contained in a carrier's proposal to establish regional or system-wide gangs ...are subject to the expedited arbitration procedure in Section 11. BMWE counterproposals, that are subject matter related to a carrier's proposals ...would also, logically, fall within a Section 11 arbitrator's jurisdiction." (Answer to Issue No. 1. Sub-question No. 5). Interestingly, that same answer refers to:
to ..CIC's elimination of PEB 219'2 confinement of the jurisdiction of the Section il arbitration to a determination of seniority rights." (See Page 16, BN's Submission)
There are certain matters concerning terms and conditions which must be addressed by me such as seniority, bulletins, bids, etc, as well as duration of this Award, identity of the controlling work contract, etc.
In addition, there is the very broad concept of matters urged by the BMWE which seek to obtain better working conditions for its members.
Considering the final matter first, I am disinclined to expand upon the basic contractual benefits granted to BMWE by PEB 219.
Indeed, I question the very basis for the request to do so. The organization raised numerous requests for increased benefits to PEB 219; it sought better conditions at all stages of the lengthy procedures which finally culminated in this Arbitration proceeding. At all levels it has sought increased pay and overtime rates, additional considerations concerning show up pay and starting points, relief concerning work weeks and work days, meal periods, increased expenses when working away-from-home, as well as prohibitions concerning subcontracting, reduction in force, better stabilization benefits and the like.ll
IF PEB 219 had granted various benefit increases in the void, without consideration of extended use of employees on regional and system-wide gangs [with the attendant potential of additional time away from home, possible increased expenses, etc] then one could possibly consider the various equitable arguments advanced by the employees. But that is far from the case. One needs only to review the January 15, 1991 Report To President By Emergency Board No. 2i9_. At Page 29, et seg. we note that the BMWE sought increased wages and Away-From-Home Expenses, among other things.. At Page 94 of the Report, PEB 219 noted that:
11 For instance, in this dispute, the organization has continuously sought to obtain benefits under 7F of the BN agreement rather than the refined Board 298 benefits. To be sure, there may be certain 7F benefits being extended at this time [as the carrier awaits this Award] under interim authority granted by the CIC, but, as I read the extensive record, I must concur with the Carrier that under the authority of PEB 219, 7F ceases as a viable provision when a Carrier opts to create production gangs under Section 11, PEB recommendations.
Thus, while recognizing the regional and system-wide gang concept, on the very next page of the Report, PEB 219 made its recommendations which, in effect, denied many of the very benefit increases sought herein. At Pages 95 and 96 the PEB recommended increases in expense payments when away from home by adding to those contained in Arbitration Board 298. It also dealt with Rates Progression, Starting times, Meal Periods, Alternative Work Weeks and Rest Days, Subcontracting, Work Site Reporting, etc. See Pages 95-99 of the PEB 219 Report).
If anything was crystal clear in the proceedings which have led to this Award, the BMWE has doggedly and persistently raised and pursued its various contentions to the PEB, and in subsequent forums. For me to grant the various extensions of benefits to the employees here it would be necessary for me to, in essence, override PEB 219 in its basic benefit package and for me to decide that it did not fully contemplate or understand the needs of the employees. I have neither the inclination nor, in all probability, the jurisdiction to enter into such a field of endeavor.
It is well to recall that the language of PEB 219's recommendation # 11 (b) (5) restricted the Article XIII Arbitrator:
To be sure, on November 6, 1991 the CIC broadened the scope to subject matter related proposals and discussed broad scope of arbitration, but I do not read the record as extending to me the powers to override PEB 219 to the extent requested by the BMWE.
Finally, it should also be noted that, as a practical matter, an Arbitrator under this abbreviated type of proceeding is, or should be, wary of ignoring, and/or expanding upon, the previously granted increased benefits. PEB 219 and the related forums had literally months to take and consider evidence and verbatim testimony.l2 To the contrary, Article XIII arbitrators work under a very limited time frame, with certain procedural impediments,l3 Thus, it is hardly likely that the same Board that created an Arbitration process with those impediments could have contemplated the authority to expand upon the basic benefits granted by it in
12 Executive Order 12714 established the Emergency Board pursuant to Section 10 of the Railway Labor Act, as amended, on May 3, 1990. The PEB 219 Report was not submitted until January 15, 1991.
13 Under Paragraph ail (b) (4) [Page 101 of Report] the arbitrator must render a written decision, which shall be final and binding, within thirty (30) calendar days from the date of the hearing, and pursuant to #li (b) (3):
the first place. In short, I have not been appointed to serve as a substitute Presidential Emergency Board. Whether or not I serve as an "interest" arbitrator as that term is normally employed, and whatever "equitable" authority I may have, I simply cannot substitute my judgment for that of PEB 219 in the manner and to the degree requested by BMWE.14
On the afternoon of May 21, 1992 the Carrier made the following two offers:
14 The Organization has made references to "prevailing" conditions. But I find a true lack of a showing that such a concept exists at this time. As noted in Footnote # 11, 7F of the BN agreement has been eliminated by PEB 219 for gangs created under its authority. Whether or not that determination was proper, equitable, just or appropriate when one considers the possibility of extended travel [and away from home living] by the employees may certainly be a subject of continuing debate. But, as noted above, I am not empowered to overrule PEB 219 in its basic concepts. For the reasons stated in this Award, the CSX agreement is a basically negotiated agreement considering concepts not present here, or at least, not obvious from the Award before me. Under those circumstances, I do not, at this time, construe the CSX agreement to be part of a "prevailing" condition.
If the BMWE desires to avail itself of the two (2) above quoted provisions, it shall so advise the Carrier within fifteen (15) calendar days from the effective date of this Award.
There are some matters however which must be decide by this Award. As they are considered below, nothing stated therein should be construed as negating the refusal to expand the PEB 219 benefits as described above.
The Carrier has stressed throughout these proceedings that the rights granted to it by PEB 219 may not be considered in a vacuum and one of the basic ingredients it must have is a "continuity" of the work force on the production gangs with attendant stability, predictability, harmony, etc. so that employees should not be permitted to come and go on the gangs -during their programmed duration. The BMWE argues that PEB 219 was not as concerned with "continuity", etc. as BN would have me believe. But, I find a basic merit to BN's assertion. For instance, PEB 219 stated in Section
This decision should be read in harmony with BN's continuity concept.
In its October 11, 1991 notification, the Carrier proposed methods of Bulletins and Assignments consistent with its above stated goals for the gangs which must be provided at least six (6) months' work in the calendar year. (See Section 13, Page 103, PEB 219 Report). The Organization has objected to what it perceives to be an unreasonable "locking in" of employees for the duration of the gang each season, the concept of "preference" for subsequent work seasons, disregard for "normal and usual" seniority concepts, among other items and raises certain jurisdictional questions concerning my authority vs. the "Select Committee". No purpose is served by a detailed recitation of all of the varying contentions and arguments advanced by the parties in their written presentations and oral arguments. Suffice it to say that all of the contentions have been weighed, and certain deserve some comment.
At Pages 3 and 4 of the Carrier's October 11, 1991 notification, it set forth proposed rules for Bulletins and Assignments plus certain other conditions. In its Exhibit # 14, BN made comparisons with BMWE proposals. For ease of comprehension, I will address the October 11, 1991 proposals. I find that they are calculated to establish the manning of the gangs, and this Award hereby adopts the wording of items (1) "Bulletins", (2) "Assignments" and (3) "Other conditions" except as modified herein.
is The B14WE has raised a jurisdictional contention concerning the carrier's proposal to require an employee to remain on the gang except as specified to the contrary. In essence, BMWE urges that an employee should have the right to exercise a seniority bid off of the gang even if it does not involve a higher rank on the home district, i.e. the right to bid off the gang onto other bulletined regional gang positions (if such region gang is programmed to work over the home district), or the home seniority district. BMWE asserts that I do not have the right to make the determination, since that is preempted to the "Select Committee" established to consider the "Work Force Stabilization" portion of the PEB 219 Recommendations (See Pages 102- 105). The PEB stated that there are " ..a number of obvious issues and concerns in developing and implementing the 'guarantee' program and probably many more that are not obvious to this Board and ...by the parties". Accordingly, the PEB established a Select Committee of the parties at the national level to identify and resolve issues directly or by final and binding decisions by the neutral chairman on such matters as:
Just as PEB 219 felt that "Perhaps the most difficult issue presented is that of work force stabilization, and particularly how that relates to the carriers' desire to establish efficient systemwide production gangs", I feel that the topic of the manning and rights of the employees on the gangs is of paramount importance. The limited time frames available, and the inability to take oral testimony on various of the contentions has, in my view, operated as a significant disservice to both the undersigned and the parties in this area. Thus, if they do not do so in any other area, I urge that the parties establish forthwith, a joint committee [with provision for a neutral party to make binding decisions] on this topic and to establish more definitive rules prior to the start of the next production season.
In its October 31, 1991 notification to the Organization, BN stated:
Certainly the "Select Committee" (Section 14) has been granted certain jurisdiction, and my authority does not come from that portion of the Recommendation. X13 does not make an authoritative ruling on the question; but rather, leaves that matter to another forum for consideration. Thus, I find that the BMWE proposal shall not be incorporated herein, with the understanding that the "Select Committee" may make that ultimate determination, and nothing contained herein is meant to, in any manner, attempt to interfere with that Committee's jurisdiction.
The record discloses that there are six (6) separate schedule rules, but the BN schedule covers 80$ of the existing employees and 77$ of the trackage. Short of creating a "new agreement" incorporating the best of all agreements- (and expanding upon the PEB 219 wages, benefits, etc) obviously the employees would prefer to work under the BN schedule so as to provide some monetary increase to at least some of the employees. While my Award does accomplish that result, that is not the basis for the decision. BN has stressed a need for consistency and uniformity of rules applicable to all employees. A periodic change in rules as seniority districts lines are crossed does not, in my view, accomplish that result, but rather, can be counter productive to such desired harmony. Employees on production gangs shall be subject to the BN general schedule rules except of course as modified by PEB 219 concerning the creation and operation of production gangs, and as modified herein.
The Organization requests that this Award be limited to one (1) year, and the Carrier desires an Award that will be effective for as long a period of time as possible.
The BMWE request is premised upon the assertion that it should have a continuing opportunity to present basic rationale for changes to this Award should its. provisions prove to be nonresponsive to the particular problems posed by the PEB 219 gang
concept. On the other hand, BN suggests that it requires a basic continuity and flexibility under established rules, and that continued alterations and changes brought about by annual "interest" arbitration is not only highly expensive, but basically unsettling and does not afford it the predictability it sought and obtained under PEB 219.
Certainly there is merit in both contentions. I am reluctant, however, to attempt to issue an Award of lengthy duration in this dispute since the very limited time frames under which we have operated suggest that some period of review of the effect of this Award is necessary under actual operation to assure that it is responsive .to the needs, and the parties should have the opportunity to refine and alter the provisions as experience dictates, which opportunity would not be present if a long term Award were to be imposed. Ideally, this Award should be effective for the remainder of 1992 and all of the 1993 season, unless amended or extended by the parties before that time.
However, the Undersigned notes a jurisdictional matter under the imposed agreement. Article XIII (a) advises that a Carrier shall give at least ninety (90) days written notice of intention to establish regional or system-wide gangs to perform work that is programmed during ante work season for more _than one seniority district. The notice must specify the terms and conditions the carrier proposes to apply. The Carrier's October 11, 1991 Article XIII's letter and subsequent correspondence, referred to work that is programmed during the 1992 Work season. The gangs were
programmed from six (6) months to more than one (1) year, and indeed, my April 20, 1992 Decision on Procedural Issues adopted the language of Page 19 of the April 6, 1992 N&W/BMWE Award on Procedural Issues which mandated that an Article XIII (a) notification contain the geographical limits of the work to be performed by each gang as well as the projected duration of the gang.
If the Carrier gives an Article XIII notification for the 1993 season, and the parties are unable to reach agreement under Article xIII (b), "...either party may submit the matter to final and binding arbitration ...^ under that section and Article XIII (c). Thus, -I am unable, in this Award, to preclude either party from submitting matters to Arbitration concerning 1993 season notification(s).
The parties have resisted any attempt to include in this Award procedures to resolve claims, grievances and disputes which may arise under this Award, preferring instead to utilize already
is Section 23 of the "Arbitrated Agreement between CSX and BMWE" is not persuasive to me for the reasons stated previously.
existing forums and procedures thereunder. Accordingly, this Award does not contain provision for any specific and individual procedures to resolve future disputes.
Either party to this dispute may request an INTERPRETATION of any of the provisions contained in this Award by giving notice of the request to the undersigned Arbitrator (with a copy to the opposing party) no later than thirty (30) days after receipt of the Award. In the event of a request for interpretation, the opposing party shall be offered an opportunity to present its contentions) on the matter (s) to be interpreted. The Arbitrator may issue an Interpretation based upon the request and the comments of the other party, or may request additional documentation or information. Further hearings will be held only if both parties request same. In any event, the Arbitrator will issue the interpretation at the earliest practical time.
HOTS
This Award does not attempt to
interfere with the jurisdiction of
the "select Committee in any manner.
03
Either party say request an INTERPRETATION of
any of the provisions contained in this Award
by giving notice to the Arbitrator no later
than thirty (30) days after receipt of this
Award.Sae the procedures set forth at page 28.
J se~h A. Sickle
Signed at Bathe d:, Maryland this th day of June, 1992
Joseph A. Sickles
Arbitrator
SECTION 11 OF THE RECOMMENDATIONS OF
PRESIDENTIAL EMERGENCY BOARD NO. 219
as imposed upon the Parties by
PUBLIC LAW 102-29