Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29299
THIRD DIVISION Docket No. MW-29290
92-3-90-3-188
The Third Division consisted of the regular members and in
addition Re=eree Charlotte Gold when award was rendered.
~SX Transportation, Inc. (formerly The Seaboard Coast
Line Railroad Company)
PARTIES TO DISPUTE:
~3rotherhood of Maintenance of Way Employes
STATEMENT OF CLAIM:
"(1) The A3reement was violated when the Carrier, without conferring
with the General Chairman, assigned work of pouring concrete slabs at Uceta
Yard, Tampa, Florida :o an outside party (Ray Davies Construction Company)
during a period May :5, 1989 through mid June 1989. [Carrier's file 12
(89-733), Organization's file CARP-89-33].
(2) As a consequence of the aforesaid violation, Carpenter Foreman
C. L. Roberts, Carpenters A. Oladell, B. J. Moore, Carpenter Helpers D. L.
McCarty, G. L. Farquarharson, and E. L. Stanaland shall each be allowed 120
hours pay each at their respective straight time 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 dispute is the contracting out of concrete work at
the Uceta Yard in Tampa, Florida, 'between May 15 and mid-June, 1989. The job
of forming up and pouring a concrete slab (6" thick; 230' x 34') was given to
the Ray Davies Construction Company. The Organization alleges that the work
performed by six contractor employees rightfully belongs to Maintenance of Way
Bridge and Building Subdepartment employees and the subcontracting here was
entered into in violation of Rule 2, Contracting, of the Agreement. The
Organization seeks 120 man hours for each of the named Claimants.
Form 1 Award No. 29299
Page 2 Docket No. MW-29290
92-3-90-3-188
Rule 2 reads as follows:
"RULE 2
CONTRACTING
This Agreement requires that all maintenance work in
the Maintenance of Way and Structures Department is
to be per'_3rmed by employees subject to this Agree
ment exce:t it is recognized that, in specific in
stances, :ertain work that is to be performed re
quires special skills not possessed by the employees
and the use of special equipment not owned by or
available co the Carrier. In such instances, the
Chief Engineering Officer and the General Chairman
will confer and reach an understanding setting forth
the condi=ions under which the work will be per
formed.
It is fur_ier understood and agreed that although it
is not the intention of the Company to contract con
struction work in the Maintenance of Way and Struc
tures Department when Company forces and equipment
are adequate and available, it is recognized that,
under cer_ain circumstances, contracting of such work
may be ne_essary. In such instances, the Chief
Engineering Officer and the General Chairman, will
confer anc reach an understanding setting forth the
conditions under which the work will be performed.
In such :.-.stances, consideration will be given by the
Chief Ena_neering Officer and the General Chairman to
performing by contract the grading, drainage, and
certain ::her Structures Department work of magnitude
or requiring special skills not possessed by the
employees, and the use of special equipment not owned
by or available to the Carrier and to performing
track work and other Structures Department work with
Company forces."
Rule 2 provides, with a few exceptions, that all maintenance work "in
the Maintenance of Way and Structures Department" is to be performed by employ
ees subject to the Agreement. The record of this case reveals that Mainten
ance of Way and Structure Department personnel have not been exclusively re
sponsible for concrete work at the Yard. Carrier contended that employees
covered by the Carmen, Sheet Metal Workers, and Electrician's Agreements had
also built forms and poured cement. Third Division Awards 26209, 26551 and
27169, involving the same parties at the same location, support that conten
tion. The real question thus becomes whether Carrier must ensure that the
disputed work be performed by Department personnel and only contract it out
under limited circumstances where (a) the Scope Rule is general in nature and
(b) the work is not specifically and exclusively reserved to Maintenance of
Way and Structures Department employees.
Form 1 Award No. 29299
Page 3 Docket No. MW-29290
92-3-90-3-188
Although the )rganization does not have the burden of proving that
it has performed certain work exclusively in cases involving outside contractors (that is, vis-a-vis
absence of a work and position Scope Rule, and where the evidence indicates
that by custom, history, and practice, the work has been performed by a wide
variety of crafts, t.^.:s is not possible to do.
Because of :.-e Organization's failure to carry its burden in this
case, this claim must Se denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ~Ef - Executive Secretary
Dated at Chicago, Ll_:nois, this 24th day of July 1992.