Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32434
Docket No. MW-31122
98-3-93-3-64
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:
(Southern Pacific Transportation Company
( (Eastern Lines)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (H. B. Zachry) to perform Welding Subdepartment work
(cut, grind and weld H-beams and work related thereto) on the
Trinity River Bridge at Liberty, Texas at Mile Post 321.98
beginning January 12 through February 1, 1992 (System File
MW-92-46/MofW 92-7 SPE).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with advance written notice
of
its
intention to contract out said work as required by Article 36.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, the Claimants* listed below shall each be allowed an equal
proportionate share
of
the total number
of
man-hours, both regular
straight time and overtime, expended by the outside forces
performing the work set forth in Part (1) hereof.
* WELDERS
D. Jimenez T. R. Dugas
J. Garcia A. D. Anderson
T. L. Pate A. Broussard
Form 1
Page 2
FINDINGS:
C. L. Schumacher
C. R. Hunter
M. J. Batiste
L. A. Swientek, Jr.
V. S. Sanchez
A. F. Granger, II
L. M. Stewart
J. A. Cloud
C. J. Abshire
K. A. Albert
J. P. Fox
C. Matthews, Jr.
M. L. Stakes
M. E. Middleton
WELDER HELPERS
R. L. Patterson
J. Allen
G. A. Davis
A. W. Parker
R. J. Minix
C. Hernandez
R. B. Watts
D. G. Galindo
Award No. 32434
Docket No. MW-31122
98-3-93-3-64
A. J. Kortz
M. R. Kalinowski
J. Gonzales
J. O. Wooley
C. R. Smith
J. W. Baggett
N. G. Barrera
H. T. Lewis
J. R. Laza
R. H. Andrews
J. S. Wisdom
R. E. Fritz
F. J. Sanchez
D. B. Richardson
P. J. Morvant
E. L. Landry
C. E. Dennis
R. J. Johnston
E. H. Anderson
H. Owdley
G. Shello"
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
herein.
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
Form 1 Award No. 32434
Page 3 Docket No. MW-31122
98-3-93-3-64
Parties to said dispute were given due notice of hearing thereon.
The following basic facts are not in dispute. On January 1, 1992, the Trinity
River Bridge ("The Bridge") at Mile Post 321.98 in Liberty, Texas was removed from
service due to a structural failure of the center span.
On January 7, 1992, Carrier's Manager-Labor Relations apprised the General
Chairman of the following:
"Please accept this as Carrier's notification No. 1, pursuant to Article 36
of the current agreement, of our intent to contract out the repairs on the
Trinity River Bridge at Liberty, Texas.
These repairs are necessary because of the loss of the center pier of the
turn span section of the bridge as a result of the flooding conditions that
exist in Texas. The work involved will require extensive steel erection.
Our bridge and building forces will assist the contractor with the repairs.
Due to the emergency that existed, it is impossible to give the fifteen (15)
days' notice as required under the provisions of Article 36 of the current
agreement."
The above-quoted notification was postmarked January 9, 1992; and received by the
General Chairman on January 15, 1992. In the meantime, on January 14, 1992, the
Special Projects Manager for the H. B. Zachry Company, General Contractors,
(hereinafter referred to as "Zachry") sent Carrier the following letter:
"This letter acknowledges receipt of your Emergency Contract, dated
January 10,1992, as a response to the H. B. Zachry offer, dated January
10, 1992. Enclosed is an executed copy.
We will be pleased to perform the services subject to the Terms and
Conditions specified in said Zachry Company offer."
The Organization presented a claim on behalf of the above listed employees
account Carrier allegedly violated the following, but not limited to, Articles of the
Agreement: Article 1- Scope Article 2 - Seniority Rules, Article 3 - Force Reductions,
Form 1 Award No. 32434
Page 4 Docket No. MW-31122
98-3-93-3-64
Article 6 - Seniority Rosters, Article 8 - Promotions and Filling of Vacancies, Article 16
- General Rules and Article 18 - Welding Gangs and Units. According to the
Organization, Carrier's alleged violation "caused the Claimants a loss of wages and
work opportunity"; the work which Zachry performed has been historically performed
by the Maintenance of Way employees; and, Claimants were not "allowed" or "offered"
the work. The General Chairman further alleged that the work was not "emergency
work", and that Carrier's notice was not timely. The Organization seeks an equal
number of both straight time and overtime hours for the work which Zachry employees
performed.
Carrier denied the claim, premised upon the following:
"Investigation reveals this was emergency work. The bridge was out of
service until welding repairs could be made. The Carrier diverted trains
over another railroad but were incurring significant delays to trains, as
well as the added expense, until traffic could be restored to our main line.
Emergency work of this nature and scope has always been done by
contractors since State certified structural welders are required to
perform this type of work. The contractor was able to provide this level
of qualification; the Brotherhood cannot.
As to the allegation the Carrier violated Article 36 of the current
Agreement, Contracting Out, by not giving the General Chairman,
BMWE, proper notice of the contracting out of work, you are advised
Carrier only had time to get engineering designs and a rough plan with
rate schedules from the contractors. The work was performed on an
emergency contract prepared in San Francisco. No plans or specifications
were prepared in sufficient detail to solicit firm bids. All work was done
on a time and materials basis, using rates from the contractors schedule,
and supervised continuously by the Railroad and by our consulting
engineer."
The situation presented on this record was an "emergency" under any reasonable
interpretation of that word. Due to heavy rains and flooding, the masonry center pier
for a 225 foot steel truss on the turn span section of the Trinity River Bridge, near
Liberty, Texas, collapsed. As a consequence, Carrier was required to take the bridge
Form 1 Award No. 32434
Page 5 Docket No. MW-31122
98-3-93-3-64
out
of
service and reroute its traffic over Union Pacific and Santa Fe tracks, for each
day
of
which substantial trackage fees were charged. Carrier utilized its Maintenance
of
Way forces in some aspects
of
the repair work but subcontracted to Zachry the work
of
cutting, grinding and welding H-beams to expedite reconstruction
of
the pier and
bridge truss.
In Third Division Award 26677 between these same Parties, the Third Division
pointed out that Carrier must be accorded reasonable leeway in coping with bona fide
emergency repairs, including relaxation of the 15-day notification requirement
of
Rule
36. (Citing Third Division Awards "13316, 12777, 15597 and many similar holdings.")
That decision constitutes ample precedent for a denial decision in this particular case.
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 21st day
of
January 1998.