Form 1 THIRD DIVISION Award No. 30100
 Docket No. MW-29381
 94-3-90-3-304


(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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


          1. The Agreement was violated when the Carrier used outside forces to apply a rubber membrane roof on the CTC Building at Salt Lake City, Utah, on March 20 through 23, 1989 (System File S-159/890384).


          2. The Agreement was further violated when the Carrier did not give the General Chairman advance written notice of its intention to contract the work involved here, in accordance with Rule 52 and the December 11, 1981 Letter of Agreement.


          3. As a consequence of the violations referred to in Parts (1) and/or (2) above, B&B Carpenters D.A. Holt and B. L. Holt shall each be allowed pay for twenty-eight (28) hours at their respective straight time rates 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.


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


At issue is the use of outside forces to apply a rubber membrane roof on the CTC Building in Salt Lake City, Utah, between March 20 and 23, 1989. The organization alleges that the work accrues to it under various rules of the Agreement--Rule 1 (Scope),

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2 (Department), 3 (Subdepartments), 4 (Seniority), 8 (Bridge and Building Subdepartment)--and that by contracting out the work, Carrier acted in bad faith, contrary to the mandate of the December 11, 1981, Letter of Agreement. Bad faith is further evidenced, it maintains, by Carrier's failure to provide proper notice to the General Chairman, in accordance with Rule 52. The Organization offers one hundred and thirteen written statements from B&B forces to prove that its members have customarily, historically, and traditionally performed building construction work of the same character.


      Rule 52 reads as follows:


                  "RULE 52. CONTRACTING


      (a) By agreement between the Company and the General

      Chairman work customarily performed by employes

      covered under this Agreement may be let to

      contractors and be performed by contractors'

      forces. However, such work may only be contracted

      provided that special skills not possessed by the

      Company's employes, special equipment not owned by

      the Company, or special material available only

      when applied or installed through supplier, are

      required; or when work is such that the company is

      not adequately equipped to handle the work, or when

      emergency time requirements exist which present

      undertakings not contemplated by the Agreement and

      beyond the capacity of the Company's forces. In

      the event the Company plans to contract out work

      because of one of the criteria described herein, it

      shall notify the General Chairman of the

      organization in writing as far in advance of the

      date of the contracting transaction as is

      practicable and in any event not less than fifteen

      (15) days prior thereto, except in `emergency time

      requirements' cases. If the General Chairman, or

      his representative, requests a meeting to discuss

      matters relating to the said contacting

      transaction, the designated representative of the

      Company shall promptly meet with him for that

      purpose. Said Company and organization

      representative shall make a good faith attempt to

      reach an understanding concerning said contracting

      but if no understanding is reached the Company may

      nevertheless proceed with said contracting, and the

      organization may file and progress claims in

      connection therewith.

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          (b) Nothing contained in this rule shall affect prior and existing rights and practices 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.


          (c) Nothing contained in this rule requires that notice be given, conferences by held or agreement reached with the General Chairman regarding the use of contractors or use of other than maintenance of way employes in the performance of work in emergencies such as wrecks, washouts, fires, earthquakes, landslides and similar disasters.


          (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."


In response, Carrier has compiled a list of one hundred and thirty-four incidents of contracting out similar work. It also alleges, among other things, that it did give timely notice.


As in the past, this Board finds Rule 1 to be a general Scope Rule. As a consequence, the organization bears the burden of demonstrating traditional and historic performance of the work in dispute. More than occasional performance is required to meet its burden here.


The Board is satisfied, based on the data provided by both the Organization and Carrier, that roofing work has been performed by members of the Organization, as opposed to members of any other craft on the property. This fact, however, does not bar carrier from subcontracting such work if specific conditions are met. Rule 52 makes this clear when it states that the parties have agreed that even work customarily performed by employes may be let to contractors. This fact, as well as the strong mixed practice that exists here, performing the work with Carrier forces and subcontractors, lends credence to Carrier's argument that it has a right to subcontract such work.


In the instant case, the Board is satisfied that a sufficient need existed for the subcontracting work and that the letter of September 15, 1988, to the General Chairman met the requirements of Rule 52 for supplying adequate notice.


      For all of these reasons, the claim must be denied.

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 94-3-90-3-304

                        A W A R D


      Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD By order of Third Division


Attest:
      Catherine Loughrin X- Interim Secretary to the Board


Dated at Chicago, Illinois, this 4th day of April 1994.