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
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        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

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                  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.
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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.