Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31730
Docket No. MW-31226
96-3-93-3-316
The Third Division consisted of the regular members and in addition Referee
Robert Richter 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 assigned an outside
forces to perform Maintenance of Way and Structures Department
work in connection with concrete work (setting forms, tieing rebar,
pouring and finishing concrete, installing anchor bolts, removing
forms and incidental work in connection therewith) in connection
with constructing extensions to the existing concrete box culverts
and bridges and the installation of culverts located between Mile
Post 297.50 and Mile Post 301.50 on the Nebraska Division
beginning on October 7, 1991 and continuing (System File 5
609/920090).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman proper advance written notice of its
intention to contract out said work as contemplated by Rule 52(a).
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, B&B Foreman K.E. Peterson and Carpenters D.T.
McIntosh, I. Espinosa, RK. Hughes and J.P. Nila shall each be
allowed compensation, at their respective rates, in an '*** equal
proportionate share of the man hours worked by the employees of
the outside contracting force ***' beginning October 7, 1991 and
continuing."
Form I Award No. 31730
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FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
This Board has two issues to resolve in this case. We will deal first with the
charge that the Carrier violated Rule 52(x). Rule 52 of the Agreement reads as follows:
"RULE 52 CONTRACTING
(a) By agreement between the Company and the General Chairman
work customarily performed by employees 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 employees, 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.
Form I Award No. 31730
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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 the carrier may nevertheless proceed
with said contracting, and the organization may file and progress claims
in connection therewith.
(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 notices be given,
conferences be held or agreement reached with the General Chairman
regarding the use of contractors or use of other than maintenance of way
employees in the performance of work in emergencies such as wrecks,
washouts, fires, earthquakes, landslides and similar disaster.
(d) Nothing contained in this rule shall impair the Company's right
to assign work not customarily performed by employees covered by this
Agreement to outside contractors."
On August 5, 1991 the Carrier notified the Organization the following:
"This is to advise of the Carrier's intent to solicit bids to cover the
grading and excavation, the subgrade stabilization, asphalt work, and
installation of gravel surface for service road in connection with the
construction of a third main line near O'Fallons, Nebraska on the Sidney
Subdivision between approximately MP 298.00 and MP 300.00.
This work is being performed under that provision of the collective
Bargaining Agreement which states, 'Nothing contained in this rule shall
affect prior and existing rights and practices of either party in connection
with contracting out'.
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Serving of this Notice' is not to be construed as an indication that
the work described above necessarily fails within the 'scope' of your
Agreement, nor as an indication that such work is necessarily reserved, as
a matter of practice, to those employees represented by the Brotherhood
of Maintenance of Way Employes.
Additionally, I will be available to conference this Notice at a
mutually agreeable time with the next fifteen (15) days in accordance with
Rule 52 of the Agreement."
On October 31, 1991 the Organization filed the claim now before this Board. One
of its positions is that the Carrier failed to give prior notice to the work performed in
this claim.
The Carrier responded by stating it did not have to give notice on work not
covered by the
Scope
Rule of the Agreement.
Previous Awards of the Third Division (See Awards 29121 and 30066) have held
that advance notice is required. In Award 30286 of this Board between the same parties
a similar dispute was resolved. In that case the Board held:
"Given the state of the record on the property, the Board concludes
that notice was not given. Thus, the finding that Rule 52 was violated is
inescapable. The remaining question is one of remedy. It is noted that,
according to the Carrier, one of the Claimants was employed at the time
of the violation. If this is true, we are not convinced on the basis of this
record that there was a lost work opportunity for that Claimant. As for
the furloughed Claimant, he is entitled to damages as claimed. The Parties
are directed to make a joint check of the records to verify the status of the
Claimants at the time of the violation."
In this case we will similarly rule that advance notice of the concrete work was
not given.
The question as to whether the Carrier violated the Scope Rule when it contracted
out the concrete work has been resolved by this Board in previous Awards. In Third
Division Award 31172 the Board held:
Form 1 Award No. 31730
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"The record in this case demonstrates a mixed practice on this
property with respect to the concrete construction work in question, which
has been confirmed in prior Awards of the Board. Third Division Awards
30287, 30262 and 28623. Numerous decisions of the Board have held that
the Carrier has the right to contract out work under Rule 52(b) and (d)
where advance notice is given and the Carrier has established a mixed past
practice. We conclude that the Carrier did not violate the Agreement
when it contracted out the work."
Further, in Third Division Award 31029 involving the same parties in a similar
dispute the Board held:
"Second, with respect to the kind of work involved in this dispute,
this Board has held that the Carrier can contract out such work. See
Third Division Award 31035 and Awards cited therein.. Those Awards are
not palpably erroneous and, in the interest of stability, they will be
followed."
As to the Carrier's position that the Organization failed to reject its declination,
we find a 69 page response met the requirement of the Time Limit Rule.
The Board has found that the Carrier failed to serve proper notice in the case.
The Carrier argues the Claimants were fully employed at the time the contractor
performed this work and as such are not entitled to any additional compensation. The
Organization states the Carrier has consistently failed to give notice and it is time it
"paid the piper." In this case the Carrier did give the Organization notice, albeit
insufficient as to the work performed. There appears to be no intent on the part of the
Carrier to deceive the Organization. Therefore, in accordance with previous Awards
of this Board involving the same parties it holds that inasmuch as the Claimants were
fully employed no compensation is due. However, the Carrier is forewarned that it is
obligated to give proper notice and future failures may be dealt with differently.
AWARD
Claim sustained in accordance with the Findings.
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ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 25th day of September 1996.