TCU members working on Burlington Northern Santa Fe (BNSF) won a major victory on January 25, 1999 when an arbitrator ruled that the railroad’s action of contracting out Purchasing and Material work in Springfield, Missouri violated the BN clerical collective bargaining agreement.
The arbitrator rejected the carrier’s argument that TCU’s work had been eliminated, ruling that the “work was not eliminated, it was transferred, pure and simple, to strangers to the Agreement.” The arbitrator also rejected BNSF’s attempt to obfuscate the language of TCU’s collectively bargained scope rule, saying that the rule was clear as written and meant what it said: “Work now covered by the scope of this Agreement shall not be removed except by agreement between the parties.” In finding for TCU, the arbitrator sustained the claim as written, which as of today is worth more than one million dollars.
Excerpts from National Railroad Adjustment Board Third Division Award No. 33044 follow.
“At Springfield, Missouri, Carrier, for many years, maintained a Purchasing and Material Management Department (“P&MM Department”) that supplied bridge timbers and provided bridge hardware to maintenance crews systemwide. The Springfield P&MM Department was staffed by employees subject to the TCU Agreement. After a bridge project was approved, Engineering Department personnel would submit a material requisition to Springfield, where Clerks would generate appropriate purchase orders. Treated wood products and timbers for a particular bridge project would be ordered from a single vendor, Kerr-McGee’s Columbus, Mississippi plant…
Other hardware needed for the project would be ordered from a variety of different vendors… All of the vendors would ship their product directly to the Springfield P&MM Department, usually by truck, where it was processed by Carrier’s employees subject to the TCU Agreement.
Shortly before a particular bridge project was to start the hardware received from the other vendors was collected by Storehouse employees and loaded into the gondola with the treated timbers received from Kerr-McGee, and then shipped to the work site.
On December 14, 1994, Carrier notified the Organization of its intent to transfer certain date entry work from Springfield, Missouri, to the Fort Worth Customer Service Center. Shortly thereafter it changed procedures for securing, storing, and distributing bridge timbers and bridge hardware. Instead of ordering material from several vendors, Carrier began sending one purchase order to GS Metals for all the material needed for a project, except the treated wood which it continued to order from Kerr-McGee. GS Metals would then order necessary items from various vendors, have it shipped to its facility, where it provided the same accounting and handling the P&MM Department previously performed, and then re-shipped the material to Kerr-McGee at Columbus, Mississippi, where it was placed in a gondola with the bridge timbers for the project, and from there, re-shipped to the job site.
The Organization contends that GS Metals and Kerr-McGee took over certain duties and responsibilities of the Springfield P&MM Department, and are now doing the same work that Clerks and Material Handlers at that facility previously performed…
Carrier responds that the change in procedures involved in this matter is merely a “direct shipment” situation which now eliminates a “middleman” function previously performed at its Springfield P&MM Department…
This Board is not persuaded that Carrier’s use of GS Metals to acquire supplies from other vendors and then ship such material along with its own material to a third vendor, Kerr-McGee, is an actual “direct shipment” situation, as argued. A direct shipment situation is one where a user of the item … orders an item from a vendor and has the item or items shipped directly to the site where it is to be used. Direct shipment involves the elimination, altogether, of the storehouse step. Replacement of an existing storehouse step with a vendor operated storehouse step is not a direct shipment situation.
It is manifest that the storehouse step has not been eliminated in the procedures under review in this claim. GS Metals now functions in the same manner as the Springfield P&MM Department functioned previously… The middleman function was not eliminated, as argued by Carrier. It was only shifted off the property to GS Metals…
The parties’ Scope Rule has been the center piece of a number of Awards of this and other Boards. In some of these Awards the parties’ Scope Rule has been discussed at great length. At least one of these Awards traced the development of the current Scope Rule through several series of negotiations. Since the adoption of its latest revision, certain “buzz words” such as “freeze-frame,” “adhesive quality,” “quantum,” etc., have been “coined” in the Awards to describe certain aspects and standards of application applicable on review. And while review of these Awards discloses that on occasion the Organization has prevailed and on occasion the Carrier has prevailed, it may well be that some of the “standards” announced, while well intended, may actually result in a misapplication of the parties’ Agreement. These decisions will not be revisited in any great detail by this Board, as, notwithstanding what some other Boards may have stated the meaning and application of Rule 1 to be, in very simple terms, it states that:
“Work now covered by the scope of this Agreement shall not be removed except by agreement between the parties.”
In this case it cannot be disputed that work covered by the Scope of the Agreement at the time the Rule was adopted was removed, without agreement between the parties. Work covered by the Scope of the Agreement was given to GS Metals and also to Kerr-McGee, without agreement of the parties. This work was not eliminated, it was transferred, pure and simple, to strangers to the Agreement. Elimination of a middleman did not occur and direct shipment to the user is not involved. Moreover, the work did not disappear, it continued to be performed by employees of GS Material and employees of Kerr-McGee, after it was no longer performed by employees subject to Scope of the Agreement. The claim has merit. It will be sustained.
With respect to remedy, Carrier has argued that the claim was improperly submitted, it is excessive and that Claimants suffered no monetary damages. Carrier’s arguments on this point are not persuasive. The Board has frequently held that no useful purpose would be served if we were to find that the Agreement was violated and no remedy was offered. In this matter substantial elements of work covered by the Agreement was removed and given to strangers, even though Rule 1, fairly read, states that this cannot be done except by agreement. Accordingly, we will award the penalty asked for in the Organization’s Statement of Claim.”