Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 30218
Docket No. MW-29547
94-3-90-3-491
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 (Garrett Excavation
and Milam Construction Company) to perform
track repair and maintenance work and right of
way cleaning work at various locations in and
around E1 Dorado Yards on February 17, 28,
March 1, 2, 3, 7, 8, 9, 10, 20, 21, 22, 23 and
April 7, 1989 (Carrier's File 89-0517 MPR).
(2) The Agreement was further violated when the
Carrier failed and refused to furnish the
General chairman with advance written notice
of the intention to contract out said work as
required by Article IV and the December 11,
1981 Letter of Agreement.
(3) As a consequence of the violations referred to
in Parts (1) and/or (2) above, Trackman A.
Miller shall be allowed pay at the time and
one-half trackman's rate for the one hundred
ten (110) manhours expended by the outside
forces performing the work in Part (1) above."
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.
Form 1 Award
No. 30218
Page
2
Docket
No. MW-29547
94-3-90-3-491
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 is one further instance, following many others, in which
the Organization alleges that the Carrier improperly contracted
work to outside forces (in this instance, track maintenance and
repair work) and, additionally, failed to give advance notice to
the General Chairman. The carrier, in part of its response, refers
to
227
instances of contracting similar work in the past.
Arguments raised by both parties have been thoroughly reviewed
in previous Awards. Here, the Board finds no significant distinction in the work involved to require
denial Awards covering similar situations. one example of the
conclusion reached by previous Awards is found in Third Division
Award
29034,
which involved a different type of work (concrete
bridge repair) but, as here, the Carrier presented myriad instances
of previously contracting such work. Award
29034
stated:
"The Organization has the burden of proving by
a preponderance of the evidence that the
disputed work has been customarily and
historically performed by the employees.
While . . we do not find this burden to
require proof of exclusive past performance,
it does, in our judgment require a showing of
more than a shared or mixed practice. After
close review of the considerations bearing on
this issue, we conclude, on the instant
record, that the organization's evidence falls
short of demonstrating such regularity,
consistency and predominance in the
performance of the disputed work to warrant a
finding that it has customarily and
historically performed the work. Accordingly,
we find that the Organization has not, on
these facts, satisfied its burden of proof
that the disputed work was reserved to the
employees."
Form 1 Award No. 30218
Page 3 Docket No. MW-29547
94-3-90-3-491
As with other similar Awards, Award 29034 found fault with the
Carrier's failure to provide advance notice to the General
Chairman. The Board takes arbitral notice that the Carrier has
remedied this failure, as evidenced by more recent disputes
reaching the Board for resolution.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By order of Third Division
Attest:
Linda Woods - Arbitration Assistant
Dated at Chicago, Illinois, this 8th day of June 1994.