Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32433
Docket No. MW-31113
98-3-93-3-85
The Third Division consisted of the regular members and in addition Referee
Dana E. Eischen 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 (Mueller Sand and Gravel) to perform Maintenance of Way
and Structures Department work (setting forms, tieing rebar,
pouring and finishing concrete, removing forms, cleaning up debris,
building foundations, building retaining walls, drainage systems and
separator system) on the Kansas Division in Maryville, Kansas
beginning October 11, 1991 and continuing (System File S-617/
920127).
(2) The Agreement was further violated when the Carrier failed to
timely furnish the General Chairman with a proper advance written
notice of its intention to contract out said work or afford the
General Chairman a meeting to discuss the work referred to in Part
(1) above, prior to the contracting out of said work, as contemplated
by Rule 52(a).
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Kansas Division B&B Group 3 Carpenters R. J. Lister, D.
J. Bejan and S. M. McMullen shall each be allowed compensation
at their respective and applicable rates of pay for an '*** equal
proportionate share of the man hours worked by the employees of
the outside contracting force ***' beginning October 21, 1991 and
continuing until the violation ceases."
Form 1 Award No. 32433
Page 2 Docket No. MW-31113
98-3-93-3-85
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.
On September 17, 1991, Carrier sent the following notice to the General
Chairman:
"This is to advise
of
the Carrier's intent to solicit bids to cover
construction
of
truckloading/ unloading pad with containment around the
pump house, relocate truck loading station, construct concrete
containment structure for lube oil and diesel fuel storage tanks with piping
for drainage, construct sewer drain to oil/water separator, and remove
concrete slab and air tank. at the Marysville Yard, Kansas.
This work is being performed under that provision
of
the Agreement which
states, `Nothing contained in this rule shall affect prior and existing rights
and practices
of
either party in connection with contracting out.'
Serving
of
this 'Notice' is not to be construed as an indication that the
work described necessarily falls 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 BMWE.
Additionally, I will be available to conference this Notice within the next
15 days in accordance with Rule 52
of
the Agreement."
Form 1 Award No. 32433
Page 3 Docket No. MW-31113
98-3-93-3-85
In his reply to the Notice, the General Chairman asserted that the work is
"specifically identified and designated" as work which "accrues to Carrier's B&B
Subdepartment under Rules 1 and 8 of the Agreement." The General Chairman further
pointed to Rule 52 of the Agreement which dictates the five conditions under which
Carrier may contract out "M of W work." The General Chairman noted that Carrier
had not alluded to any of the five conditions, maintaining that there is "no valid basis"
for the transaction. Finally, the General Chairman asserted that:
"With respect to your comments contained in the last paragraph of your
letter regarding the scope of our Agreement, past practice, etc., this
appears to be the same rhetoric or a form thereof the Carrier has argued
before which I contend is unfounded and meritless.
r
The Carrier has also contended that in the past there are literally
thousands of Awards which have consistently recognized that in the face
of a general Scope Rule the determination as to whether a particular type
of work is or is not scope covered must turn on whether the employees
have or have not as a matter of custom and tradition performed such work
at locations throughout the system to the exclusion of all others. While this
may or may not be true, one must remember the Scope of our Agreement
is not general in nature but is, specific because of the exact language
included in our Agreement like the examples, Rules 8, 9 and 10, given.
Under such circumstances, the Carrier's contention, whether true or false,
seems to be irrelevant."
On September 30, 1991, Carrier responded maintaining that:
"This type work has traditionally been contracted by the Company. The
Scope Rule in the labor contract is general in nature and does not set aside
any work in connection with the notices at issue for exclusive performance
by employees represented by the BMWE. The general Scope Rule
combined with the Company's well-known and accepted past practice of
subcontracting establish the absolute right of the Company to subcontract.
It has long been accepted and recognized that Rule 52 applies only to
Form 1 Award No. 32433
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98-3-93-3-85
Scope covered work. There is simply no legitimate rule basis for an
assertion that the work at issue cannot be contracted by the Company.
The rules which you have cited in your letters are classification of work
rules which are totally independent of the Scope and contracting rules.
Any question of whether or not the Company can subcontract work falls
outside the realm of the classification work rules and in the end must rely
on the Scope and contracting rules. Your argument that the Scope Rule
is `introductory' in nature and co-mingles with the classification of work
rules to create a specific scope rule is completely unsupported. Under a
general scope rule it is axiomatic that exclusivity in the performance of
work is the appropriate test used to determine work ownership.
Obviously, the BMWE cannot demonstrate exclusivity in the performance
of the work at issue in these notices."
A conference was held on October 3, 1991, however, the matter remained unresolved.
On November 15, 1991, the Organization submitted the above quoted claim.
At issue in this dispute is Carrier's right to subcontract work pursuant to the
provisions of Rule 52 of the Agreement. A careful review of the evidence adduced on
this record leads us to conclude that Carrier did not violate the Agreement when it
contracted out the work which Mueller Sand and Gravel performed beginning October
21, 1991. At the outset, Carrier served notice of its intent to contract the work in
dispute. Further, Carrier successfully established a past practice of subcontracting out
work just such as that which is at issue. Finally, the Organization was unable to refute
Carrier's assertion that it did not possess the "special" equipment necessary, nor did it
have M of W forces available to perform said work. Based on the foregoing, this claim
is denied.
AWARD
Claim denied.
Form 1 Award No. 32433
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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 21st day of January 1998.