Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28623
THIRD DIVISION Docket No. MW-28393
90-3-88-3-171
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein 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 the Carrier assigned outside
forces to install a multiplate culvert in the arch at Mile Post 907.34 in the
vicinity of Altamont, Wyoming beginning July 29, 1986 (System File M-470/870024).
(2) The Agreement was- further violated when the Carrier did not give
the General Chairman prior written notification of its plan to assign said
work to outside forces.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, furloughed B&B Carpenters R. E. Rondeau, P. C. Curby, S. J.
Harrington, D. T. McIntosh and J. J. Callahan shall each be allowed pay at
their respective rates for an equal proportionate share of the total number of
man-hours expended by outside forces in performing the work referred to in
Part (1) hereof."
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.
This case is another in a series of cases between the parties involving work that was contracted
July 29, 1986. In the instant case, the Organization protests the fact that
this outside concern performed the assembly and installation of a conduit and
Form 1 Award No. 28623
Page 2 Docket No. MW-28393
90-3-88-3-171
the construction of concrete catch basins between Mile Posts 907 and 908 near
Altamont, Wyoming. It asserts that the contractor assembled a multiplate
conduit culvert and placed it in an existing tunnel, and then filled in the
right-of-way to the ends of the conduit where the concrete catch basins were
constructed. According to the Organization, this was work which has customarily and historically bee
contractually reserved to such employees under the provisions of Rules 1, 2,
3, 4 and 8. It is the Organization's position that the Carrier violated the
Agreement when, without giving the required advance written notice of its
plans, it contracted out the work at issue.
Carrier does not dispute that it failed to give the required notice,
but argues that the work in question falls neither within the scope of the
Agreement nor does it meet the test that the employees have by tradition,
custom and past practice performed such work. Carrier insists that the
Agreement language and past practice permitted the contracting out of this
work which, in any event, constituted only a small portion of the total project at this location.
As we read the record evidence and the arguments presented by the
parties, we find the issues presented here to be identical to that seen in
Third Division Award 28622. Our findings and conclusions set forth in that
case are incorporated herein as if fully rewritten.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: _ _ _
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 17th day of December 1990.