SPECIAL BOARD OF ADJUSTMENT NO. 287
PARTIES: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
THE BALTIMORE AND OHIO RAILROAD COMPANY
AWARD IN DOCKET N0. 8
STATEMENT
OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the effective Agreement when it assigned a
portion of the work of construction and erecting a new metal depot at Bellville,
Ohio, to other then its B&B forces;
(2) Carpenter Foreman James E. Secrist, Carpenter B. A. Phalan, Jr.,
and Carpenter Helpers John G. Felton and Orville H. Sichiner each be allowed 54 hours'
pay at their respective straight time rates because of the violation referred to in
Part (1) of this claim."
FINDINGS: This is one of several cases before this Board involving the Scope
Rule, (b)5(a).
Organization raises several questions with respect to these contract
provisions, upon which we rule, respecting these contracting cases now before us, as
follows:
1. Carrier has the right to determine, without prior conference
with the Organization, that work which it desires to have performed under contracts let by the Company.
2. Under (b)5(a), its action can be justified by the existence
of any one of the six circumstances therein listed.
3.
Burden of proving the existence of any one of the six circumstances relied on rests with the Carrier.
Considerable argument was offered by the parties at the hearings before
this Board, and by the Board Members in executive session, as to the critical time in
such cases. Should judgment be made of Carrier's action upon the circumstances
existing at the time Carrier signs a contract with an independent contractor to perform certain work, as Carrier contends; or should we judge these cases on the circumstances existing when the independent contractor begins the work, or while it is in
progress, as contended for by the Organization?
We have every appreciation of Organization's efforts to seek the latter
holding in behalf of its membership. The fact remains, however, that no one can foresee with any degree of accuracy that which may occur in the future. To hold otherwise
would be to render an ex post facto indictment. We will therefore rule:
4.
The circumstances to be considered in judging Carrier's action
in contracting such work shall be those circumstances existing
at the time Carrier executes a contract for the performance of
such work.
.1
- 2 - DOCKET N0. 8
With respect to the particular work which is the subject of this
claim, we find Carrier relying on (b)5(a) 2, 4, 5 and
6.
With respect to Carrier's reliance on paragraph 2 of (b)5(a) -"because of the requirement of special skills necessary in connection with performance of the work" -- we have Carrier statement that ARMCO crews "do nothing
but erect buildings and they have become very proficient in the erection of the
buildings."
We do not doubt this statement. There is, however, in this record an
admission by Carrier's Assistant Chief Engineer, Maintenance (TP 184) that B&B men
"can do it (erect a Steelox building), but it is the time element." He estimated
it would take B&B forces "twice as long" as the ARMCO crews to erect such a building. It being a fact that 27 mandays were consumed by ARMCO men in erecting this
building, it is possible that a B&B gang of
6
men could have done the job in
9
days. So the difference is of no great consequence with relation to Carrier's
reliance on paragraph 5 -- "the time within which the work must be completed as
related to other projects" -- or with relation to Carrier's reliance on paragraph
4 -- "where the work with Company forces would limit the extent of the supplier's
guarantee." It is admitted this Carrier had used B&B forces before in erecting
Steelox buildings.
Finally, we have Carrier relying on paragraph
6:
"Employees covered by the agreement on the seniority
district involved cannot be assigned to the work without
impeding the progress of other projects."
Carrier asserts that at the time the contract with ARMCO was executed,
it did not have any furloughed men on the Newark Division. We do not charge that
Carrier did not make this statement in good faith. However, we are mindful of
many decisions of the National Railroad Adjustment Board which have held that the
mere assertion of a claim is not, of itself, sufficient proof thereof.
This is particularly true here where Carrier may, under (b)5(a), contract out work which might ordinarily belong to these employees under any one or
mY
ore of six sets of circumstances.
We have held, and properly, that the Carrier must carry the burden of
proof on such of these six circumstances as it may rely in defense of its action.
A mere assertion on its part does not meet that burden.
On the basis of the record before us, we must and will conclude Carrier -
has failed to carry its burden of proof under (b)5(a). This claim will be sustained.
AWARD
Claim sustained.
(s) Edward A. Lynch
Chairman
(s) A. J. Cunningham
(s) T. S. Woods
Employee Member Carrier Member
Dated at Baltimore, Maryland,
this 28th day of March,
1960.