Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32561
Docket No. MW-31762
98-3-94-3-16
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 (Commercial Door Installers) to perform Steel Erection
Subdepartment work (installing an electric roll-up door in the north
end of the North No. I canopy of the locomotive facility, i.e.. the
Diesel Shop) at Salt Lake City, Utah on October 10, 1992 (System
File H-6/930143).
(2) The Agreement was further violated when the Carrier's advance
written notice of its intention to contract out said work was
improper and when it failed to make a good-faith effort to reduce
the incidence of contracting out scope covered work and increase
the use of its Maintenance of Way forces as required by Rule 52(a)
and the December 11, 1981 Letter of Understanding.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Western District Steel Erection employe R. L. Winn shall be
allowed three and one-fifth (3 1/5) hours' pay at the steel erection
foreman's straight time rate. Western District Steel Erection
employes J. L. Smith and R. R. Eden shall each be allowed three
and one-fifth (3 1/5) hours' pay at the bridge welder's/arc welder's
straight time rate. Western District Steel Erection employe J. F.
Berg shall be allowed three and one-fifth (3 1/5) hours' pay at the
1st Class Steel Bridgeman's straight time rate and Western District
Steel Erection employe T. F. Sweat shall be allowed three and one-
Form 1 Award No. 32561
Page 2 Docket No. 11W-31762
98-3-94-3-16
fifth (3 1/5) hours' pay at the steel bridgeman's/machine operator's
straight time rate."
FINDINGS:
The Third Division of the Adjustment Boaru. ..,-)on 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.
The Carrier provided timely advance notice
of
its intention to contract to outside
forces the work cited in the Statement
of
Claim. The Board finds the notice adequately
meets the requirement of Rule 52(a). Conference was held with the General Chairman.
at which the parties did not reach an "understanding" concerning the work.
While the Organization relies on Rule 52(a), other Rules, and the December 11.
1981 Letter of Understanding, the Carrier emphasizes Rules 52(b) and (d), which read
as follows:
"(b) Nothing contained in this rule shall affect prior and existing
rights and practices of either parties 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.
(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."
There have been many Awards concerning this Carrier's contracting
of
work.
Where notice has been lacking, is untimely, or in improper form, Awards have sustained
Form 1 Award No. 32561
Page 3 Docket No. MW-31762
98-3-94-3-16
the Organization's position. See Third Division Awards 31283 and 31284, as examples.
Likewise, there are sustaining Awards where the Carrier's explanation of previous
practice has been unconvincing. In this instance, however, the Board finds no unique
or unusual circumstances to warrant departure from a long line of denial Awards.
Among these denial Awards in Public Law Board No. 5546, Award 11, involving
the same nature of work and the same parties. PLB No. 5546, Award 11 concluded as
follows:
"The Board has reviewed all of the arguments in this case, and we
find that the Organization has not met its burden of proof that the Carrier
was in violation of the Agreement when it subcontracted the work
involved. We find that the Carrier served proper notice of its intent to
subcontract, and the Carrier had an established past practice of
subcontracting this type of work."
To similar effect is Third Award 31035, which cited a number of other denial
Awards.
.WARD
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 19th day of April 1998.