NATIONAL RAILROAD ADJUSTMENT BOARD
Form THIRD DIVISION Award No. 29544
Docket No. MW-29895
93-3-91-3-272
The Third Division consisted of the regular members and in
addition Referee Hugh G. Duffy 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 used an
outside concern (McGill Painting Company, Inc.) to
perform building maintenance work comprised of preparing
the surface of and applying paint, stain, varnish and
wallpaper to ceilings, walls, woodwork, columns and
casings at the 5th Floor Lobby of the Carrier's Omaha
Headquarters Building on January 16, 17, 18, 19, 22, 23,
24, 25 and 26, 1990 (System File S-265/900271).
(2) The Agreement was further violated when the Carrier
did not give the General Chairman advance written notice
of its intention to contract out the work described in
Part (1) hereof in accordance with Rule 52.
(3) As a consequence of the violations referred to in
Parts (1) and/or (2) above, B&B Painters W. J. Crawford
and R. J. Cronican shall each be allowed forty-eight (48)
hours' pay at the applicable First Class Painter's rate
of pay."
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 employe 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.
Form 1 Award No. 29544
Page 2 Docket No. MW-29895
93-3-91-3-272
Parties to said dispute waived right of appearance at hearing
thereon.
On June 19, 1989, the Carrier served notice of its intent to
subcontract the painting of the fifth floor lobby of its
headquarters building in Omaha, Nebraska. Following a conference
held with the organization on August 4, 1989, the Carrier proceeded
with the project. The organization contends that Carrier violated
Rule 52 when it contracted out the work.
Rule 52 provides, in pertinent part, as follows:
"(a) By agreement between the Company and the
General Chairman work customarily performed by employes
covered under this Agreement may be let to
contractors... [conditions listed].
(b) Nothing contained in this rule shall affect
prior and existing rights and practices of either party
in connection with contracting out...
(d) Nothing contained in this rule shall impair the
Company's right to assign work not customarily performed
by employes covered by this Agreement to outside
contractors."
The facts in this dispute are almost identical to those in
Third Division Award 29037, which involved the painting of a
different floor in the same building. There the Board held:
"The Scope Rule is a general Rule and the onproperty record is conclusive that the work has not been
'customarily' performed by employees. The letters
submitted by B&B Painters do not refute the Carrier's
evidence that it utilized outside forces for decades to
perform work which included painting. The Organization's
rebuttal on the property of the sixty-four year record,
including the point that the Omaha headquarters was
painted by outside contractors only three times in that
period, is not on point. It is central to this dispute
that proof has been presented by the Carrier that outside
forces historically painted buildings, including the
Headquarters Building. This probative evidence removes
this work from that which the Carrier is restricted from
contracting out and is required to give advance notice."
We find the reasoning in this Award to be compelling and must
likewise deny the claim in the instant case.
Form 1 Award No. 29544
Page 3 Docket No. MW-29895
93-3-91-3-272
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 9th day of March 1993.