Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29019
THIRD DIVISION Docket No. MW-28857
91-3-89-3-259
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:
(Union Pacific Railroad Company (Former Missouri 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 (Robertson's Machine Shop) to perform routine maintenance on the Marley
Bridge in Addis, Louisiana beginning September 21, 1987 (Carrier's File 871029
MPR).
(2) The Carrier also violated Article IV of the May 17, 1968
National Agreement when it did not give the General Chairman advance written
notice of its intention to contract said work.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, B&B Foreman D. G. Townley, B&B Assistant Foreman R. H.
Hutchins, B&B Helper M. L. Durant and First Class Ironworkers D. J. Smith, J.
C. Williams and P. L. Ingram shall each be allowed pay at their respective
straight time and overtime rates for all straight time and overtime hours
expended by the contractor performing the work identified in Part (1) above
beginning September 1, 1987 and continuing until the violation was 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
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On September 21-24, 1987, the Carrier engaged a contractor to make
repairs on a bridge in the vicinity of Addis, Louisiana. No notice of such
work was provided to the Organization under the provisions of Article IV-Contracting Out of the May
Form 1 Award No. 29019
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91-3-89-3-259
"In the event a 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.
If the General Chairman, or his representative, requests a
meeting to discuss matters relating to the said contracting
transaction, the designated representative of the carrier
shall promptly meet with him for that purpose. Said carrier
and organization representatives shall make a good faith
attempt to reach an understanding concerning said contracting, but if no understanding is reached th
nevertheless proceed with said contracting, and the organization may file and progress claims in con
Nothing in this Article IV 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 rea
in connection therewith
...."
In its defense, the Carrier cited in its Submission 269 instances of
contracting bridge, repair work (paralleling similar information provided on
the property during the claim handling procedure). This includes many instances before and after the
The Carrier contends that such occurrences were not challenged by the Organization. However, there i
The Board does not support the Carrier's view that the Claim must
fall based on a failure by the Organization to show that it has performed such
work on an exclusive basis. Further, there is little support for the contention that such work must
In view of the extended practice as to contracting work such as here
under review, however, the Board is guided by previous Awards under parallel
circumstances. As one example, Third Division Award 28610, reviewing closely
similar if not identical Rule language, stated as follows:
"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 herein 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 affect 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
Form 1 Award No. 29019
Page 3 Docket No. MW-28857
91-3-89-3-259
the notice violation that the Organization could prevail.
Given the long period of time during which the Organization has
acquiesced in the practice of contracting out the disputed work,
however, it is the opinion of the Board that the Organization
cannot now claim a violation of Rule 52 without first putting
Carrier on notice that it believed advance notification was
required in this particular instance. Accordingly, it is our
judgment that the Board herein is limited to directing Carrier
to provide notice in the future, just as in Third Division
Award 26301."
4 W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Kiz
'&V~ 0/
Attest: ,
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois this 28th day of October 1991.