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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28611
THIRD DIVISION Docket No. MW-28684
90-3-89-3-47
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

(Southern Pacific Transportation Company (Eastern Lines)

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned outside forces to remove ballast and sub-surface soil from beneath the tracks and to assist in the removal and realignment of tracks in the Hardy Street Yards beginning April 11, 1988 (System File MW-88-86/470-64-A).

(2) As a consequence of the aforesaid violation, furloughed Machine Operators C. Wyatt, L. R. Neal, M. Hernandez, J. Johnson, D. Scott and R. Sanchez shall each be allowed pay at their applicable straight time and overtime rates for an equal expended by the outside forces performing the work referred to in Part (1) above, beginning April 11, 1988 and continuing until the violation is corrected."

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 ,ute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

On February 26, 1988, the Carrier wrote to the Organization as fol-

lows: I
Form 1 Award No. 28611 Page 2 Docket No. MW-28684 90-3-89-3-47

"NOTICE N0. 4

Please accept this as Carrier's Notice pursuant to Article 36 of the BMWE Agreement of our intent to contract the following work: In conjunction with the rehabilitation and upgrading of a major portion of the Hardy Street Yard Houston, Texas, it will pe necessary to remove most of the diesel contaminated soil and replace with sand and crushed limestone and to install a complicated subsurface drainage systgm. It is also necessary to remove and replace poor track areas and place fiberglass track containment pans where required. The Carrier plans to use our forces to perform all track work and the placement of diesel containment pans. Due to the large scope of the dirt work, it is .ar intent to utilize a contractor for this portion of the project. The City of Houston has agreed to close Hardy Street across our yard if we rehabilitate Maury Street through our right-of-way and the Opelousas Street crossing. This work will consist of removing trackage, upgrading other crossings by replacing rail and cross-ties through the streets and by installing over 100 tons of asphaltic concrete paving. The Carrier plans to use our forces to perform all work except the asphaltic concrete paving. It will be necessary to contract out this portion of the project, as it requires equipment and expertise that w do not have available. This work will begin on or after March 14, 1988.", Article 36 reads as follows: "CONTRACTING OUT In the event this carrier plans to contract out work within the scope of the applicable schedule agreement, the carrier shall notify the General Chairman of the organization involved in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than 15 days prior thereto. Form 1 Award No. 28611 Page 3 Docket No. MW-28684 90-3-89-3-47 If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated repre sentative of the carrier shall promptly meet with him for that purpose. Carrier and organization repre sentatives shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached the carrier may never theless proceed with said contracting, and the organ ization may file and progress claims in connection therewith. Nothing in this Article shall affect the existing rights 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 General Chairman promptly responded to the Carrier's notice, stating in part as follows: "Please be advised we cannot agree to outside contractors performing this MofW work and we request a conference to discuss this notice. It is our position that the Carrier now owns or leases the equipment to remove the diesel contaminated soil as the only equipment necessary for this work would be front-end loader, dump trucks, motor grader and gradall. Ths equipment could also be used to replace the sand and crushed limestone. It is also our position that the_Carrier has the employees either working or in a furloughed status that could perform this work if they are given an opportunity . . . . Thereafter, the Carrier proceeded with its plans to contract the work at issue. According to the Organization, such work by the contractor commenced on April 11, 1 e The Organization contends that the Carrier did not proceed in good faith under Article 36, arguing that the Carrier had.already entered into an Agreement without an outside concern prior to its conference with the organization. The Carrier deni that such Agreement was not signed until April 12, 1988. Form 1 Award No. 28611 Page 4 Docket No. MW-28684 90-3-89-3-47 Simply giving notice, even where such notice is timely, is not all that is required of the Carrier under Rule 36. Where work is "within the scope of the applicable schedule agreement," the parties are required to make "a good faith attempt to reach an understanding concerning said contracting." In the Board's view, the record supports the organization's contention that the work involved wa the work. In fact, employees represqnted by the Organization did perform some of the work involved in the "rehabilitation and upgrading" of the Hardy Street Yard. The Carrier fails to note any,previous instance of contracting out this particular type and extent of work. ,In sum, the Carrier has failed to demonstrate why the work coul In sustaining the Claim, the Board directs the parties to meet promptly to determine the actual number of hours worked by individual employees of the contractor in Claimants are entitled. In this instance, the Carrier's request to offset such payment by other earnings is found inappropriate. This is not an instance where.an employee was rather, only a share of a limited number of hours is involved. A W A R D Claim sustained in accordance with the Findings. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest:~ Nancy J er - Executive Secretary Dated at Chicago, Illinois, this 16th day of November 1990.