Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32333
Docket No. MW-32021
97-3-94-3-341
The Third Division consisted of the regular members and in addition Referee
Margo R. Newman 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 or otherwise
permitted employes of an outside contractor (Neosho Construction
Company, Inc.) to perform Maintenance of Way and Structures
Department work (excavating, preparatory work, pile driving,
forming, pouring and finishing of concrete and other related work)
in connection with the extension of the width of the main line bridge
at Mile Posts 40.50 to 40.75 near Ontario, California beginning
December 7, 1992 and continuing (System File H-46/930435).
(2) The Agreement was further violated when the Carrier failed to
provide proper and timely advance written notice of its intention to
contract out the specific work involved herein or to hold good-faith
discussions prior to the contracting transaction.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above:
`*** As compensation for loss of work
opportunity Claimants Baker, Holland and Wolfe
should each be paid nine and three-eights 9 3/8) hours
of pay for each day worked by the contractor
beginning on December 7, 1992 at the first class
carpenter's rate of pay for pile driving, excavating,
Form 1 Award No. 32333
Page 2 Docket No. MW-32021
97-3-94-3-341
preparatory work, concrete forming, concrete pouring,
concrete finishing and other related work for the width
extension of the bridge at M.P. 40.50 to 40.75 near
Ontario, California. Claimants Chamberlain and
Blankinship should each be paid nine and three-eights
(9 3/8) hours of pay for each day worked by the
contractor beginning on December 7, 1992 at the B&B
foreman's rate ***'
and continuing until the violation ceases."
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 dispute arises out of the Carrier's use of outside forces to perform concrete
and related work in connection with the extension of the width of the main line bridge
near Ontario, California. The record reveals that the Carrier gave notice of its intention
"to solicit bids to cover the construction of a second main line, MP 39 to MP 55 located
between Ontario and Pedley, California which includes bridges " on May 28, 1992,
stating that it "will be available to conference this Notice within the next fifteen (15)
days ...." By 30 page letter dated June 1, 1992, the Organization objected to the
contracting, raised specific questions, and requested a conference prior to the
commencement of the work. The Carrier responded to the Organization's concerns and
expressed a willingness to meet in its .June 5, 1992 reply, suggesting that the Organization
put the matter on the agenda at their next conference on contracting notices. The matter
was discussed in conference on June 8, 1992. The contracting in issue commenced in
December. 1992.
Form 1 Award No. 32333
Page 3 Docket No. MW-32021
97-3-94-3-341
The Board initially concludes that the record in this case does not support the
Organization's contention that the Carrier failed to give adequate notice
of
the work to
be contracted under the requirements
of
Rule 52. The breadth
of
the notice clearly covers
bridge work to be performed at MP 40 near Ontario, California in connection with the
main line expansion. See Third Division Award 31028. The Organization failed to show
that the work actually contracted was outside the scope
of
this notice. We conclude that
the notice gave the Organization enough information to take a position on whether the
work in issue should be contracted out. Further, a conference was actually held between
the parties where this notice was discussed. Under such circumstances, the Board has held
that the Carrier complied with the notice provisions
of
Rule 52. Third Division Awards
30185,30063,29981.
The ability of the Carrier to contract out concrete work under Rule 52(b) has been
upheld in Third Division Awards 31730, 31651, 31287, 31172, 31035, 31029, 31028, 30287
and 30262. Given the practice established on this property for the kind
of
contracting out
involved in this case, there is no basis for determining that these Awards are palpably
erroneous. In the interests
of
stability, we shall follow their holdings.
AWARD
Claim denied.
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.