Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13821
Docket No.
13709
05-2-03-2-56
The Second Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(BNSF Railway Company
STATEMENT OF CLAIM:
"l. That the Burlington Northern Santa Fe Railway Company
violated the current Agreement, effective April 1,
1983,
as
amended, in particular Appendix
G-2,
Sections 1,
2, 3
and 4
(CB&Q Labor Agreement No.
75-69,
as amended), when they
wrongfully subcontracted the T.K.D.A. Engineering the
programming of Programming Logic Controllers [P.L.C.'s] for
the diesel fuel tank car unloading at Pasco, Washington, on or
about June
2001.
2. That the Burlington Northern Santa Fe Railway Company
further violated the current Agreement, in particular Appendix
G-2,
Section 4, when they failed to furnish the General
Chairman with the required notice of intent to contract and the
requested data relative to the subcontracting transaction.
3. Accordingly, the Burlington Northern Santa Fe Railway
Company, due to this violation which caused a loss of work
opportunity, should be ordered to compensate System
Electricians William R. Jones, Dean Forshee, and Greg
Ratzlaff in the amount provided for in the Agreement. Said
time lost by the Claimants was approximately 150 man-hours."
Form 1 Award No. 13821
Page 2 Docket No. 13709
05-2-03-2-56
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21,1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
' Without prior notice to the Organization, the Carrier subcontracted the
programming of Programming Logic Controllers ("P.L.C.'s) to T.K.D.A.
Engineering for the diesel fuel tank car unlading at Pasco, Washington.
Appendix G-2 provides, in pertinent part:
"ARTICLE I. SUBCONTRACTING
Section 2.
Work set forth in the classification off work rules of the crafts parties
to this agreement or work generally recognized as work of the crafts
as referred to therein will not be subcontracted except in accordance
with the terms of this agreement . ...
Section 3.
Subcontracting of work ... will be permitted only under the ffollowing
conditions:
Form 1 Award No. 13821
Page 3 Docket No. 13709
05-2-03-2-56
(a) When such work cannot be performed by the carrier except at
a significantly greater cost
(b) Skilled manpower is not available on the property from active
or furloughed employees
(c) Essential equipment is not avialable on the property .
(d) The required time of completion of the work cannot be met
with the skills, personnel or equipment available on the property .
~r
Section 4.
(a) If the carrier decides to subcontract work (except for minor
repairs and in emergency situations) in accordance with this
agreement, it will give the general chairman of the craft or craffts
involved notice of its intention, which will include the reasons
thereffor ....
(c) The General Chairman or his designated representative will
notify the carrier within ten days from the post-mark date of the
Carrier's notice to subcontract work of any desire to discuss the
involved transaction and a conference will be arranged to discuss
such transaction within ten days from the date the General
Chairman or his representative notifies the Carrier of his desire to
discuss the matter. If the parties are unable to reach an agreement
at such conference the carrier may nevertheless proceed to
subcontract the work and the organization may process the dispute
to a conclusion as hereinafter provided."
There are two distinct sets of obligations and rights established by Appendix
G-2. The first is the obligation of the Carrier to give notice to the Organization of
Form 1 Award No. 13821
Page 4 Docket No. 13709
05-2-03-2-56
its intent to subcontract. The second is the right of the Carrier to subcontract. This
case is about notice.
The Carrier did not give the General Chairman notice of its intent to contract
the work of programming the P.L.C.'s. Rule 50(a)(2) provides that "Electricians'
work will consist of the ... repairing, rebuilding, maintaining, overhauling, adjusting
... testing, and other electrical work of or on ... motors and controls, rheostats and
controls ...." Statements from an employee show that electricians "... have been
installing & programming P.L.C.'s for the last 15 to 20 years" and "[t]he P.L.C. is a
controller for all the controls & pumps, valves, motors at the Pasco, Wash. Diesel
Fueling Fac."
The record therefore sufficiently establishes that under Appendix G2, Article
1, Section 2, such work is "[w]ork set forth in the classification of work rules ..." as
work on "motors and controls, rheostats and controls" under Rule 50(a)(2) or
"work generally recognized as work of the craft ...." Notice of contracting the work
was therefore required. The Carrier's failure. to give the proper notice therefore
violated Appendix G-2, Article 1, Section 4.
The Carrier's arguments that the electricians were only recently trained to
assist engineers in diagnostic trouble shooting and lending assistance in part
replacement off the P.L.C.'s and that the work does not fall under the classification
of work rule are not persuasive arguments. Based on what is before us (particularly
that similar work has been done by the electricians in the past), those arguments
really have little to do with the Carrier's obligation to give notice. Those arguments
go the Carrier's right to subcontract once it gives notice.
Given the description of work in Rule 50(a)(2) and the employee's statements
that similar work has been performed by electricians in the past, we are satisfied
that the Carrier was obligated to give the required notice. Exclusive performance of
the kind of work is not required as a pre-condition for the Carrier's obligation to
give the required notice. The only requirement to give notice of subcontracting is
that the work be "... set forth in the classification of work rules ..." or "work
generally recognized as work of the craft ...." Again, work on "motors and controls,
rheostats and controls" is set forth under Rule 50(a)(2) and the employee's
statements show that in the past similar work has been performed by electricians.
Notice was required.
Form 1 Award No. 13821
Page 5 Docket No. 13709
05-2-03-2-56
It may well be that had the Carrier given the proper notice as required by
Article I, Section 4, it would have had the right to subcontract the work because of
the conditions specified in Article I, Section 3 (i.e., significantly greater cost of the
work, skilled manpower or essential equipment not available, required time of
completion of the work could not be met. But the threshold obligation for the
Carrier was to give notice. The Carrier did not do that.
Appendix G-2 provides for the remedy:
"ARTICLE II. RESOLUTION OF DISPUTES
~r sr
(c) Remedy ...
If ... the Carrier failed to give notice in accordance with this
agreement, it [the Board] shall award liquidated damages to be
determined by multiplying 10% of the number of hours charged by
the subcontractor for performing the work by the hourly rate of pay
of claimants. Such amount thus determined shall be divided equally
between claimants.
If the Board holds in a particular case that the carrier subcontracted
work in violation of Article I of this Agreement and the monetary
relief sought is on behalf of a named furloughed employee who
would have otherwise performed the work, it shall award such
employee the amount of wages lost and other benefits necessary to
make him whole. If the monetary relief sought is on behalf of
employees in active service who were not adversely affected by the
subcontracting, the Board shall nevertheless award minimum
liquidated damages as specified above. It is understood that the
Board cannot award liquidated damages in accordance with the
previous paragraph if it awards such damages under this
paragraph."
The Claimants were fully employed at the time the dispute arose. Under the
above language, the most they could receive as a remedy is "... multiplying 10% of
the number of hours charged by the subcontractor for performing the work by the
hourly rate of pay of claimants."
Form 1 Award No. 13821
Page 6 Docket No. 13709
05-2-03-2-56
The Carrier asserts that T.K.D.A. performed 59 man-hours on the project.
The Organization estimates that 150 man-hours were required. The matter is
remanded to the parties to determine the number of hours it took T.K.D.A to
perform the work. The Claimants shall receive the 10% liquidated damages
amount based upon the provisions of Article II(c) of Appendix G2.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 1st day of April 2005.