Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28558
THIRD DIVISION Docket No. MW-28579
90-3-88-3-408
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(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
remove the existing fence and install new fence between Mile Post 882.5 and
Mile Post 890.5 near Bridger, Wyoming beginning September 3, 1987 (System File
5F-52-4/870784).
(2) The Agreement was further violated when the Carrier did not
afford the General Chairman a meeting to discuss the work referred to in Part
(1) a's contemplated by Rule 52(a).
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, B&B Foreman D. J. Herrera and B&B Carpenters D. W. Hilton,
R. L. Longmire, G. B. Roper, P. J. Kern, S. K. Maximenko and J. W. Lamons
shall each be allowed pay at their respective rates for an equal proportionate
share of the man-hours expended by the outside forces performing the aforedescribed work beginning S
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.
On August 3, 1987, the Carrier served notice upon the Organization
that it intended to contract out the reconstruction of 24 miles of right-ofway fence near Bridget, W
completed prior to the cold weather season. By letter dated August 11, 1987,
the General Chairman took exception to the Carrier's intention to contract out
Form 1 Award No. 28558
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90-3-88-3-408
the work, asserting that none of the six conditions specified in Rule 52 was
present. After advising the Carrier he could not agree to allow it to contract out the work, the Gen
prior to the commencement of the work to discuss matters related to the transaction. The General Cha
number of man-hours to be consumed on the project and the reason why the Carrier was not recalling i
The contractor began working on September 3, 1987. The Organization
filed a protest on September 28, 1987, asserting the General Chairman's request for a conference was
filed on October 1, 1987.
The Organization primarily asserts the construction of right-of-way
fences is work that is exclusively reserved to
B&B
forces under the Agreement.
This position is based upon the Organization's interpretatt_-.. of Rules 1, 2,
3, 4, 8, and 13, which define the scope of the Agreement and delineate the
work of
B&B
employees in general and fence gangs in particular. The Organization also asserts that
BBB
forces have customarily, historically, and
traditionally been assigned to perform this work and has submitted documentation to support this ass
Next, the Organization argues that work customarily performed by
covered employees may be let to contractors only under limited circumstances.
These conditions, which are set out in Rule 52, are present when:
...
special skills not possessed by the Company's employees, special equipment not owned by
the Company, or special material available only
when applied or installed through supplier, are
required; or when work is such that the Company
is not adequately equipped to handle the work,
or when emergency time requirements exist which
present undertakings not contemplated by the
Agreement and beyond the capacity of the Company's forces."
The Organization avers that skills, equipment, and material were
available. It further argues the Carrier cannot create an emergency through
its failure to plan ahead. The Organization submits the Carrier was, or
should have been, aware of the need to reconstruct the fences earlier and
should have recalled the Claimants from furlough earlier than it did to perform this work.
Finally, the organization argues the Carrier violated the Agreement
when it failed to honoi the General Chairman's request for a conference prior
to the commencement of the work by the contractor. The Claim should be sustained, it argues, because
bad faith on the part of the Carrier, contradictory to the provision in Rule
52 which reads as follows:
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"If the General Chairman, or his representative,
requests a meeting to discuss matters relating
to the said contracting transaction, the designated representative of the Company shall
promptly meet with him for that purpose. Said
Company and Organization representative shall
make a good faith attempt to reach an understanding concerning said contracting
....
The Carrier denies the construction of fences is reserved to the
employees under the Agreement. It argues the Scope Rule is general in nature
and the other Rules cited by the Organization are Classification of Work Rules
which merely establish which employees perform the work if it is performed by
covered employees. The Carrier further asserts the documentation proffered by
the Organization fails to rise to the level of proof that covered employees
have customarily, historically, and traditionally been assigned to perform
this work. The Carrier then relies upon Rule 52(d), which reads as follows:
"Nothing contained in this rule shall impair the
Company's right to assign work not customarily
performed by employees covered by this Agreement
to outside contractors."
The Carrier next argues it is privileged to continue to contract out
work which was contracted out prior to the adoption of Rule 52. It submits
this right was reserved in Rule 52(b), which reads as follows:
"Nothing contained in this rule shall affect
prior and existing rights and practices of
either party in connection 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."
The Carrier asserts it had a prior practice of contracting out the
construction of fences and has submitted a summary of a representative sample
of 46 such contracts for a period covering 1918 through 1985. The Carrier
notes Rule 52(b) differs from Article IV of the May 17, 1968, National Agreement because of the incl
Finally, the Carrier denies the Organization's assertion this matter
was not discussed in conference with the General Chairman prior to the commencement of the work. It
which it stated the matter was discussed in conference with the General Chairman on August 3, 1987.
the Carrier argues it must be accepted as fact.
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We cannot conclude the Carrier failed to discuss the contract in
conference. As noted above, the Carrier asserts a conference was held on
August 3, 1987, the date it notified the Organization of its intent to contract out the work. Despit
letters subsequent to the Carrier's letter of November 24, 1987, it did not
refute the Carrier's statement. We also note none of the three letters
appealing this Claim makes reference to this issue. Accordingly, we must
reject this as a basis for the Claim.
We need not address the issue of whether or not the work is covered
by the Scope Rule or practice. Rather, we are compelled to follow the principles in Third Division A
parties. In each case, the Carrier established a history of contracting out
work (construction of side tracks in Award 27010 and grading in Award 27011).
In the first case, the Board held that
"...
while the work involved is arguably covered by the Scope Rule, Carrier had the right t_ ._-^_rac
under Rule 52 " because of the history of contracting. In Award 27011, the
Board held:
"While the Board believes that the work in
question is covered by the Scope Rule for the
purpose of advance notice, we are also of the
view that the remedy requested would, under the
unique circumstances of this case, be inappropriate. The Board takes note that the work at
issue has apparently been contracted out for
over 35 years and therefore falls within the
provision of the Agreement which states that
'nothing contained in this rule shall effect
(sic) prior and existing rights and practices of
either party in connection with contracting
out.' Thus, the claim would have to be denied
on the merits and it is only on the notice
violation that the Organization could prevail."
We find these Awards directly on point. In this case, Carrier has
also established a long history of contracting out the construction of rightof-way fences. This work
Rule 52(b) without regard to whether or not it is reserved exclusively to
covered employees. The Agreement was not violated.
A W A R D
Claim denied.
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NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. D -Executive Secretary
Dated at Chicago, Illinois, this 27th day of September 1990.