Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27770
THIRD DIVISION Docket No. MW-27068
89-3-86-3-120
The Third Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company (formerly Chicago, Milwaukee,
St. Paul and 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 remodeling work on the depot at Milwaukee, Wisconsin October 8 through
December 7, 1984 (System Files C II22-84/D-2686, C M28-84 /D-2686-B, C #29-84/
2686-A and C N4-85/D-2686-C).
(2) As a consequence of the aforesaid violation:
(a) B&B Employes C. R. Bath, D. D. Bowman, R. C. Brown, L. J.
Budahn, A. T. Clark, M. P. DeVries, J. B. Fehler, R. W.
Hansen, Jr., G. Harris, Jr., G. J. Hubatch, J. T. Ingham, V.
Jefferson, J. Jones, J. W. Keller, D. P. Knaak, J. E. Love, R.
L. Morrow, G. A. Prell, R. W. Prestater, A. C. Schulz, R. C.
Stankovsky, J. R. Wayer and D. M. Wild shall each be allowed an
equal proportionate share of two hundred eighty-eight (288)
man-hours (System File C /I22-84/D-2686).
(b) 86B Employes C. R. Bath, D. D. Bowman, R. C. Brown, L. J.
Budahn, A. T. Clark, M. P. DeVries, J. B. Fehler, R. W.
Hansen, Jr., G. Harris, Jr., G. J. Hubatch, J. T. Ingham, V.
Jefferson, J. Jones, J. W. Keller, D. P. Knaak, J. E. Love, R.
L. Morrow, G. A. Prell, R. W. Prestater, A. C. Schulz, R. C.
Stankovsky, J. R. Wayer, D. M. Wild and T. J. Rueda shall each
be allowed an equal proportionate share of six hundred thirty
two (632) man-hours (System Files C #28-84/D-2686-B and C I#29
84/2686-A).
(c)
B&B Employes
C. R. Bath, D. D. Bowman, R. C. Brown, L. J.
Budahn, A. T. Clark, M. P. DeVries, J. B. Fehler, R. W.
Hansen, Jr., G. Harris, Jr., G. J. Hubatch, J. T. Ingham, V.
Jefferson, J. Jones, J. W. Keller, D. P. Knaak, J. E. Love, R.
L. Morrow, G. A. Prell, R. W. Prestater, A. C. Schulz, R. C.
Stankovsky, J. R. Wayer, D. M. Wild, T. J. Rueda, E. W. Finger,
D. P. Lynch and K. K. Popp shall each be allowed an equal pro
portionate share of one hundred four (104) man-hours (System
File C #4-85/D-2686-C)."
Form 1 Award No. 27770
Page 2 Docket No. MW-27068
89-3-86-3-120
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes 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 waived right of appearance at hearing thereon.
This dispute arose when the Carrier contracted with an outside construction firm to work on remo
contends that the work was within the scope of the Agreement and had been done
by B&B forces in the past. It argues that the Carrier could have coordinated
the work among the employees to complete the project.
The Carrier argues that the work was not within its jurisdiction, not
a part of the scope of the Agreement and that it is not required to fragment
the entire project so that various work could be done by the employees. It
maintains that the employees did not have the combined or coordinated skills
to complete the project and that part of the work required licensed plumbers
and electricians.
A full review of the facts finds no issue raised on the property as
to Carrier's proper notification of its intent to contract out. Said notification does not indicate
Agreement or not (Third Division Awards 25370, 20920).
In this and similar contracting out cases the burden of proof rests
firmly on the Carrier. Our review of the record finds that the Carrier has
made a number of assertions. These include: the task was of great magnitude;
that it required combined and coordinated skills of various crafts; the employees were not su
licensed plumbers and electricians were required.
The Organization has shown that some of the work was within the scope
of the Agreement. It rebuts the Carrier's assertions in part. A careful
reading indicates that it does not dispute that the project was of great
magnitude or that it required the coordination of various crafts. The Organization did not refute th
plumbers were required and that the Carrier had none on the property. The
probative evidence establishes that contractors were used on two previous
occasions in the depot performing "similar work" on the second and third
floors. That stands unrefuted. In addition, the claims indicate that nearly
two months' work was necessary to complete the project. This Board did not
find that the Carrier had contracted the work to ten different firms, but to
Form 1 Award No. 27770
Page 3 Docket No. MW-27068
89-3-86-3-120
one. The record shows that the Carrier contracted with Platt Construction to
do the remodeling and that nine different firms were utilized by that firm to
complete the work.
Overall, the Carrier has met its burden to establish that the project
was of sufficient magnitude requiring unobtainable skills as to permit it to
contract out the work. Although some portion of the work was within the scope
of the Agreement, this Board cannot, on the basis of the facts, establish that
the work was either entirely within the scope or of a large magnitude of the
project. Organization's claims to various aspects of the work including "the
installation of tile, staining doors, installing doors and base board moldings, installing door knob
sufficient evidence to evoke a sustaining Award. (Third Division Award 20785)
Our review of the record does not find that a violation of the Agreement
occurred in the instant circumstances (Third Division Award 26220).
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. - .Executive Secretary
Dated at Chicago, Illinois, this 2nd day of March 1989.