NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25864
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when outside forces were used to perform welding work on rail ends
18, 1982 (System File 7-26-13-14-54).
2. The Agreement was further violated when the Carrier did not give
the General Chairman prior written notification of its plan to assign said
work to outside forces.
3. Because of the aforesaid violations, Welder R. E. Ward and Welder
Helper C. R. Pedersen shall each be allowed pay at their respective rates for
an equal proportionate share of the total number of man-hours expended by outside forces in performi
OPINION OF BOARD: On January 18, 1982, a two-man gang employed by an outside
Contractor began welding work on rail ends and frogs in the
Nampa Yards at Nampa, Idaho. The Organization contends that the work in question was contractually r
Welder Helpers. As a consequence, Carrier violated the parties Agreement
(specifically Rules 1, 2, 3, 4 and 9) when it assigned this work to an outside
force. At the same time, Carrier failed to give the General Chairman advance
written notice of its intent to contract out, a violation of Rule 52 (Contracting).
Rule 52 reads as follows:
"RULE 52. CONTRACTING
(a) By agreement between the Company and the General Chairman work customarily performed by empl
However, such work may only be contracted provided
that special skills not possessed by the Company's
employes, special equipment not owned by the Company, or special material available only when applie
or when work is such that the Company is not ade-
Award Number 26174 Page 2
Docket Number MW-25864
quately equipped to handle the work, or when emergency time requirements exist which present und
event the Company plans to contract out work because of one of the criteria described herein it
shall notify the General Chairman of the Organization in writing as far in advance of the date of
the contracting transaction as is practicable and
in any event not less than fifteen (15) days prior
thereto, except in 'emergency time requirements'
cases. If the General Chairman, or his representative, requests a meeting to discuss matters relatin
meet with him for that purpose. Said Company and
Organization representative shall make a good faith
attempt to reach an understanding concerning said
contracting but if no understanding is reached the
Company may nevertheless proceed with said contracting, and the Organization may file and progress c
(b) Nothing contained in this rule shall affect
prior and existing rights and practices of either
party in connecting with contracting out. Its
purpose is to require the Carrier to give advance
notice and if requested, to meet with the General
Chairman or his representative to discuss and if
possible reach an understanding in connection
therewith.
(c) Nothing contained in this rule requires that
notices be given, conferences be held or agreement reached with the General Chairman regarding
the use of contractors or use of other than maintenance of way employes in the performance of work
in emergencies such as wrecks, washouts, fires,
earthquakes, landslides and similar disasters.
(d) Nothing contained in this rule shall impair
the Company's right to assign work not customarily
performed by employes covered by this Agreement to
outside contractors." (Emphasis added)
Award Number 26174 Page 3
Docket Number MW-25864
Carrier acknowledges that, through oversight, it failed to notify the
Organization of its intent to subcontract, but argues that (1) the work in
question was not exclusively that of the employes in question, (2) a wellestablished practice has ex
(3) the Organization had filed a number of Claims before, but had let them
die. Carrier maintains that prior rights and practices were unaffected as a
result of its actions and that Claimants, who were fully employed during the
Claim period, suffered no loss. Further, Carrier lacked the needed welding
equipment necessary to establish an additional gang.
Whatever the merits of Carrier's position on its right to subcontract
the work in question, its case falters at the outset because of its failure to
provide proper notice to the General Chairman of not less than fifteen days
prior to its taking action, as required by Rule 52(a). That Rule stipulates
that such Notice is required where the work in question is "customarily
performed by employes covered under this Agreement." while there may be a
valid disagreement as to whether the work at issue was exclusively reserved to
those employes, there can be no dispute that it was customarily performed by
Claimants.
The opportunity to discuss subcontracting is an important one. Although Carrier may argue, for e
the work at a time when it is mutually convenient to do so. As noted in Third
Division Award No. 23354, "For Carrier to ignore this requirement and move
ahead with a subcontract because it either thinks that the work to be performed by the outsider is n
claims it does not have the proper equipment is unacceptable."
At the same time, we are also persuaded by the decision in Award
23354, that compensation must be denied because all affected employes are
fully employed and suffered no loss. This is a position that has long bee
applied in the industry and we find no basis for ruling to the contrary. This
is not to say, however, that there is no merit to the Organization's contention that flagrant and co
provide proper notification should result in the sustaining of a monetary
Claim. It is an argument that warrants attention and we will continue to
consider it in the future.)
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor Act
as approved June 21, 1934;
Award Number 26174 Page 4
Docket Number MW-25864
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
01
Attest:
Nancy J. Dever - Executive Secretary
Dated at Chicago, Illinois, this 29th day of October 1986.
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CARRIER MEMBERS' DISSENT
TO
AWARD 26174, DOCKET MW-25864
(Referee Gold)
While it may appear academic in this case, we do believe it appropriate
to point out that where, as here, the Carrier has contracted out the work in
dispute for approximately 50 years without the Organization bringing a single
dispute to this Board alleging that such conduct violated any Agreement between the parties, the Car
nature that no violation should have been found. To suggest, as does the
Majority, that a backpay remedy might have been appropriate if Claimants had
not been fully employed, is to place too high a premium of form over substance.
X/~/00"~ -
M. W. Fingtrhut
1-d";N -
M. C. Lesnik
P. V. Varga
J/. ,$. Yost