Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28411
THIRD DIVISION Docket No. MW-26796
90-3-85-3-554
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces to perform paving work at the Car Shop the first week of September,
1984.
(2) The Carrier also violated Supplement No. 3 of the Agreement when
it did not give the General Chairman advance notice of its intention to contract said work.
(3) As a consequence of the aforesaid violations, Carpenters M. K.
Arfsten, J. L. Skifstad, J. F. McGregor, Jr., S. M. Udenberg, J. J. Cardinal,
P. C. Jacobson, G. A. Thompson and D. J. Garwood shall each be allowed eight
(8) hours of pay at their respective rates."
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.
A Claim was filed by the Organization's General Chairman on grounds
that the Carrier was in violation of the Agreement when a contractor was used
to do some blacktopping at the Carrier's Car Shop in lieu of B&B Forces. In
denying the Claim the Carrier's Engineer of Buildings and Bridges stated the
following:
Form 1
Page 2
Award No. 28411
Docket No. MW-26796
90-3-85-3-554
...the Bridge and Building Department does not
possess any paving equipment suitable for a job
of this size nor do we have people skilled to
operate such equipment. We did perform such
work in connection with the project as we were
able. This included removal of the old surface,
preparation of the subgrade and installation of
flangeways."
On appeal the General Chairman states that there was "...no great need to get
this work done this year" and that approximately ten years earlier he himself
"ran the compactor and also helped lute the blacktop" and that the B&B forces
had "worked with the contractor" in doing work of the kind in question.
At issue here, according to the Claim, is Agreement Supplement 3
which states the following:
"Contracting of Work
(a) The Railway Company will make every
reasonable effort to perform all maintenance
work in the Maintenance of Way and Structures
Department with its own forces.
(b) Consistent with the skills available in
the Bridge and Building Department and the
equipment owned by the Company, the Railway
Company will make every reasonable effort to
hold to a minimum the amount of new construction
work contracted.
(c) Except in emergency cases where the need
for prompt action precludes following such procedure, whenever work is to be contracted, the
Carrier shall so notify the General Chairman in
writing, describe the work to be contracted,
state the reason or reasons therefor, and afford
the General Chairman the opportunity of discussing the matter in conference with Carrier representat
will attempt to reach an understanding with the
General Chairman in conference, by telephone if
necessary, and in each case confirm such conference in writing.
(d) It is further understood and agreed that
the Company can continue in accordance with past
practice the contracting of right-of-way cutting, weed spraying, ditching and grading."
Form 1 Award No. 28411
Page 3 Docket No. MW-26796
90-3-85-3-554
The second aspect of the Claim centers on the issue of notification.
The General Chairman states that the Carrier was in violation of the Agreement
when it failed to give notice of subcontracting out the work.
After reviewing the evidence the Board concludes that while the issue
of blacktopping itself is not breached by the Scope Rule of the Agreement,
there had been a practice on this property of using
B&B Forces
to do various
kinds of blacktopping jobs. The Carrier readily admits that the craft had
been used "since 1973" to do such jobs as blacktopping the:
"1. Mechanical Department access road.
2. Access road to Trimmer's House at Duluth Dock.
3. Dock access road by Elliot Plant.
4. Area around Buildings 146, 147, 148.
5. Car shop parking lot.
6. Turntable center.
7. Caboose service area ...(and) the
8. Locomotive fast track."
These statements of fact are found in the Director of Personnel and Labor
Relations' letter to the Organization's General Chairman. But did the
B&B
Forces ever blacktop anything as big as the work done by the Arrowhead Black
Top Company at the Car Shop? The Organization never says that they did. The
General Chairman only states that he had participated in such work done by an
outside contractor a decade earlier. Did the company have equipment to do the
job of the size in question? Nowhere does the Organization argue that it did.
The statement by the Engineer of Bridges and Buildings, that "...the Bridge
and Building Department does not possess any paving equipment suitable for a
job of (the) size (in question) is never factually disputed by the organization.
Supplement 3 clearly and unambiguously permits the company to go to
an outside contractor if it does not own equipment to do a particular job, and
if it does not have "...skills available in the Bridge and Building Department." Argument by the Gen
to require the Carrier to mix the work. Nor can the Board find any other
contract provision requiring the Carrier to follow such procedure when it
subcontracts. Nowhere does the Carrier argue that this work was an emergency.
On the other hand, no contractual provision is presented to the Board which
barred the Carrier from doing the work during the time-frame which it considered to be consistent wi
whether the General Chairman thought there was "no great need to get the work
done" when the Carrier did it. The privilege for such managerial decisions is
not barred by any contract language presented to the Board.
Form 1 Award No. 28411
Page 4 Docket No. MW-26796
90-3-85-3-554
It is clear that the Carrier had a mixed tradition with respect to
blacktopping. Some jobs had been done by B&B Forces. Others had been con
tracted out when equipment and skills were not available. But does the Agree
ment still require the Carrier to notify the General Chairman when contracting
is contemplated? The Board must conclude, as Third Division Award 26832 has
already done, that Supplement 3(c) "requires advance notice" to the Organiza
tion by the Carrier when it intends to subcontract. In that case, involving
these same parties, the Board concluded, on merits, that the work in question
which was the fabrication of signs, was "...normally performed by the Organ
ization." While the Board is unable to conclude likewise here with respect to
the particular blacktopping job in question the Carrier was still required to
give advance notice and it failed to do so. Supplement 3(c) uses broad lan
guage: it states that "...whenever Chairman
...." is
to be contracted, the Carrier
shall so notify the General Chairman. " On the other hand, it is also clear
from the record on this case, as it was to the Board in Award 26832 that both
parties only gave, at most, "...lip service" to the provisions which are found
in Supplement 3 and that such indifference by the Organization, in demanding
its privileges under this Supplement sent a signal to the Carrier whereby it
began to interpret the requirements of Supplement 3 as forfeited by the Organ
ization. The filing of this and a number of other Claims by the Organization
with respect to subcontracting shows that the Organization no longer wishes to
forfeit such rights. The "...mutual drift away from contract compliance" by
both parties, as Award 26832 puts it, not only with respect to the merits of a
particular subcontracting issue, but also on the question of notice, puts the
Board in a position whereby it cannot here conclude that any monetary remedy
is appropriate.
Claims filed under Third Division Award 26832 as well as the instant
one and accompanying Third Division Award 28412, all show that the Organization is attempting to sto
3. All three Claims were filed prior to the issuance of Third Division Award
26832 and this and accompanying Award 28412. The Awards issued on all three
cases should, therefore, serve as notice to the parties involved that in the
future the Board may well be disposed to conclude differently on the issue of
relief.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of May 1990.
CARRIER MEMBERS' DISSENT
TO
AWARD 28411, DOCKET MW-26796
(Referee Suntrup)
The majority in this Award has concluded that:
a) The work of blacktopping is not specifically reserved
to the organization by the Scope Rule.
b) While B&B forces have done small repair and patch jobs,
large jobs such as this were always contracted out.
c) Carrier neither had the necessary equipment nor the
skilled manpower to perform all aspects of the job.
d) Supplement No. 3 is an agreement provision that is
substantially different from Article IV of the May 17,
1968 National Agreement and in fact pre-dates the
National Rule provision by ten years (Third Division
Award 11984).
e) Supplement No. 3 permits the Carrier to do exactly what
it did in this case.
However, the Majority has also concluded that the provision of
Supplement No. 3(c) requires the Carrier to give advance notice
whenever "it intends to subcontract." This is an overbroad and
misapplication of the notice requirement. The whole intent of
Supplement No. 3 was to provide coverage for work performed "in
the Maintenance of Way and Structures Department." The obvious
reference to work in Supplement No. 3(c) was to the work within
the Department. While what that work could be, might be a matter
in dispute; in this case, that question has been resolved as NOT
having been done by the Department. If the work is not
Department work, the notice requirement does not apply. Further,
reliance on Third Division Award 26832 does not support the
conclusion reached in this case. In that Award, the Board found
that the work was normally performed by the organization. In
Dissent to Award 28411
Page 2
this case, the evidence does not support the conclusion that the
Maintenance of Way ever performed such a massive undertaking.
While the determination of coverage under Supplement No. 3 is an
evidentiary one before this Board, it is clearly a drift in the
wrong direction to require notice when the record substantiates
that the work was not covered.
We Dissent.
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P. V VARGA
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M. W. FINGERHUT
R. L. HICKS
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