Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28543
THIRD DIVISION Docket No. MW-27330
90-3-86-3-542
The Third Division consiste addition Referee Elliott H.
PARTIES TO DISPUTE:
d
of the regular members and in
Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
(The Atchison, Topeka and Santa Fe 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 clean and repaint Bridges 138.1 and 133.3 beginning December 19,
1984 (System Files 180-A8-857/11-1940-20-232 and 180-A8-859/11-1940-20-234).
(2) As a consequence of the aforesaid violation, Los Angeles
Division B&B Painters R. S. Gonzales, P. L. Jacome, R. E. Henderson, B. L.
Gambill, M. N. Romero, G. W. Beauregard, M. D. Bowlin, D. J. Ritter, E.
Delgado and T. G. Eikom shall each be allowed one hundred ninety-two (192)
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.
At issue in this case is whether the Carrier violated the controlling
Agreement when it contracted out the work of cleaning and painting two bridges
on the Los Angeles Division during December, 1984 and January, 1985. The
Organization asserts that instead of assigning the Claimants to perform this
work, Carrier hired Lundeen Coatings Corporation and, beginning December 19,
1984, five of the contractor's employees worked 27 days cleaning and painting
Bridge No. 138.1. From January 15 through 28, 1985, the contractor's five
employees cleaned and painted Bridge No. 133.3. The Organization argues that
the work of cleaning and painting bridges has customarily and historically
been performed by B&B Painters, and, further, that the work is contractually
reserved to them under the provisions of Rules 1, 2(a) and Appendix 24, which
state in pertinent part:
Form 1 Award No. 28543
Page 2 Docket No. MW-27330
90-3-86-3-542
"RULE 1 - SCOPE
This Agreement governs the hours of service,
wages and working conditions of employes o the
following classes in the Maintenance of Way and
Structures Department: Track Supervisors and Motor
Track Inspectors, to the extent set forth in Appendix
No. 23; Bridge and Building Foremen; Paint Foremen;
Bridge men (not including Steel Bridge or Assistant
Steel Bridge Foremen); Bridge and Building Mechanics;
Bridge and Building Painters; Bridge and Building
Helpers; Welder Gang Foremen; Welders; Heat Treaters;
Welder Helpers; Extra Gang Foremen; Fence Gang Foremen; Section Foremen; Assistant Extra Gang Foreme
and Assistant Section Foremen; Trackmen; System Rail
and Plow Gang Employes; Fuel Foremen; Pumpers and
Water Treaters; Machine Operators; Bridge and Building and Water Service Laborers; Fuel Station and
House Helpers and Laborers; Track, Bridge, Tunnel and
Crossing Watchmen and Flagmen and such other classifications as may be shown in the appended wage sc
or which may hereafter be added thereto.
RULE 2 - SENIORITY
2 - (a) - Establishment of Seniority. Except for
track, bridge, tunnel and crossing watchmen/flagmen,
who do not establish seniority as such, seniority
shall be established as Track Supervisor, Motor Track
Inspector or in one of the following groups:
Group 1. -
Class 1: B. & B. Foremen and Bridge Inspectors
Class 2: Assistant B. & B. Foremen
Class 3: B. & B. Mechanics
Class 4: B. & B. and Painter Helpers
Class 5: B. & B. and Water Service Laborers
Group 2. -
Class 1: Paint Foremen
Class 2: Painters
Class 3: B. & B. and Painter Helpers
Form 1 Award No. 28543
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90-3-86-3-542
WAGE APPENDIX
RATES EFFECTIVE JULY 1, 1983
(* Rates effective July 1, 1983, include 37, General
Increase effective July 1, 1983.)
B&B AND PAINTER FOREMEN:
First two years' service as such . $2319.40 per month
Third year's service and thereafter as such S2340.90 per month
B&B MECHANICS (Including B&B Painters) 12.1408 per hour
B&B
Mechanics, when they perform welding, will
receive a rate of $12.4060 per hour in accordance
with the provisions of Memoranda of Agreement
dated July 15, 1976 and November 10, 1981.
A B&B Mechanic selected as lead workman, pursuant to Rule 39, Section (a), as amended by the
November 10, 1981 Memorandum of Agreement, will
be paid the lead mechanic's rate ($12.4060 per
hour) for such days as assigned." (Emphasis added)
During the handling of this dispute on the property, the Organization
submitted to the Carrier nearly 30 letters from B&B employees stating that the
work in question has always been performed by Bridge and Building Painters.
The Organization submits that Claimants were available, qualified, and willing
to perform all of the cleaning and painting work involved here. In its view,
the reservation of bridge painting work to B&B Painters is one of the most
fundamental components of the controlling Agreement, and allowing the contracting out of such work r
Carrier contends, first, that the Claim is vague and indefinite and
does not constitute the filing of a proper Claim under the provisions of Rule
1'4(9)(1). On the merits, Carrier maintains that the work is not reserved exclusively to the Claiman
insists that there were special procedures and equipment needed to handle the
cleaning and painting of the bridges involved, and that similar kinds of
special projects have been contracted out in the past. Finally, it is Carrier's position that Claima
result of the disputed work being contracted out. Therefore, Carrier requests
that this Claim be denied. .
After careful review of the record in its entirety, we find no merit
to the Carrier's contention that this Claim should fail for lack of specificity. In our view, the Cl
inform the Carrier of the nature of the grievance, and, therefore, we will not
dismiss the Claim on that basis.
Form 1 Award No. 28543
Page 4 Docket No. MW-27330
90-3-86-3-542
We do agree with the Carrier, however, that Rules 1, 2(a) and
Appendix 24 are general in nature and do not confer upon the Claimants the
exclusive right to perform the disputed work.
In cases of this nature, where there is no specific reservation of
work provision in the Agreement, it is incumbent upon the Organization to show
that the work has customarily and traditionally been performed by members of
its craft. Third Division Awards 26711, 23423, 25276. The Organization has
failed to meet that burden here. While it was proven that B&B employees have
generally performed the work of cleaning and painting bridges in the past,
there was equally probative evidence submitted by the Carrier that the particular work at iss
and crossing over heavily traveled highways, thereby requiring the use of special procedures and equ
that the Organization was entitled to perform the disputed work on the dates
claimed here.
As a final matter, we reject the Organization's assertion that, by
notifying the employees of its intent to contract out the cleaning and painting work, Carrier implic
under the Scope Rule. That argument has been rejected in several prior
Awards. Third Division Awards 25370, 20920. The rationale generally given is
that such notice is a procedural requirement and does not establish, either
affirmatively or negatively, that the disputed work is exclusively covered
under the controlling Agreement.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy ver·- Executive Secretary
Dated at Chicago, Illinois, this 27th day of September 1990.