Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32310
Docket No. MW-31425
97-3-92-3-956
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
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces to perform basic roadway machine operator's work (building
berm, grading and constructing roadbed) between approximately
Mile Post 297.50 and Mile Post 301.50 on the Nebraska Division
from October 3, 1991 and continuing (System File S-598/920038).
(2) The Agreement was further violated when the Carrier failed to
make a good-faith attempt to reach an understanding concerning
said contracting as required by Rule 52(a).
(3) As a consequence
of
the violations referred to in Parts (1) and/or (2)
above, Group 19 Roadway Machine Operators B. L. Sauvage, P. D.
Brown, D. L. Squibb, D. D. Dickinson, M.A. Magnett, T. L.
Reikofski, C. D. Skala, L. J. Doebele, A. L. James and Group 15
Truck Drivers IC. L. Williams, D. B. Wilken, L. H. Wilson and J. E.
Mumm shall each be allowed `. . . an equal proportionate share of
the man hours worked by the outside contracting forces in
performing the referred to operation
of
designated Roadway
Equipment and Trucks at their respective Group 19 and Group 15
straight time and overtime rates
of
pay as compensation for the loss
of
work opportunity suffered. . .' during the period the contractor
forces performed said work."
Form 1 Award No. 32310
Page 2 Docket No. MW-31425
97-3-92-3-956
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.
As characterized by the Organization, "Beginning on October 3, 1991, the
Carrier assigned an outside concern to operate heavy equipment and heavy duty trucks
in connection with the work of building grade and berms preparatory to the relocation
of trackage between Mile Posts 297.50 and 301.50 on the Nebraska Division."
There is no question here that the Carrier gave timely notice and held a
conference on the matter upon request of the General Chairman.
The Board need not and should not go beyond the conclusions of numerous
previous Awards concerning similar projects. These Awards hold that the nature and
extent of the particular work, together with established past practice, validate the
Carrier's use of contractors under the provisions of Rule 52. As examples, the Carrier
cites Awards 27010, 18619, 28622, 30193, 30210, 31286, 31288, and 31721. Some of
these are sustaining Awards based solely on the Carrier's failure to give advance notice
as required by Rule 52; such is not the case here.
The Board finds no distinguishing characteristics in the facts here under review
to reach a conclusion contrary to the Awards cited above.
AWARD
Claim denied.
Form 1 Award No. 32310
Page 3 Docket No. MW-31425
97-3-92-3-956
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 13th day
of
November 1997.