PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33467
Docket No. MW-32500
99-3-95-3-317
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
(Union Pacific Railroad Company
"Claim
of
the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Coleman Industrial & Adams Construction) to perform
Maintenance of Way and Structures Department work in
connection with concrete work and construction of a steel building
at the La Grande, Oregon Yard beginning on November 8, 1993
and continuing (System File C-11/940196).
(2) The Agreement was further violated when the Carrier failed to
timely furnish the General Chairman with 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, Northwestern District Steel Erection employes H. S. Role, J.
D. Bowen, K. E. Murphy, R. R. McDonald, D. R. Scoville, S. E.
Burgus and Oregon Division Bridge and Building Subdepartment
employes B. L. Roberts, E. T. Hughes, D. D. Boslau and R. Moreno
shall:
'***As compensation for loss of work opportunity each Claimant should
be paid fifty four and four-fifths (54 4/5) hours at his respective straight
time rate of pay and thirty seven and two-fifths (37 2/5) hour and (sic) the
Form 1
Page 2
FINDINGS:
Award No. 33467
Docket No. MW-32500
99-3-95-3-317
time and one-half rate of pay for time worked by outside forces when the
Carrier failed to assign Bridge and Building Subdepartment forces the
concrete work and construction of a steel building to cover the waste oil
treatment plant and related work at La Grande Oregon Yard starting on
November 8, 1993. This claim is considered continuous as the building is
not finished."'
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.
By letter
of
July 27, 1993, Carrier's Manager Contract Services notified the
BMWE General Chairman
of
Carrier's intent to solicit bids to contract certain work
at La Grande, Oregon, specified as ". . . furnishing labor, equipment and materials to
perform demolition and associated construction for the waste water treatment plant."
General Chairman Wehrli and Carrier Representative Hallberg met in conference on
August 3, 1993, to discuss the proposed contracting, following which by letter of August
3, 1993 the General Chairman filed a written protest that "the notice was procedurally
defective and the Organization could not reach an Agreement with the carrier to allow
it to contract out this work customarily performed by Maintenance of Way employees
. . . ." Carrier proceeded to contract with Coleman Industrial &Adams Construction
and the demolition and reconstruction work at issue commenced at La Grande on
November 8, 1993. Thereafter, the General Chairman filed the instant claim on
January 3, 1994, which echoed and expanded upon the allegations contained in his
August 3, 1993 letter
of
protest, including a detailed description of the concrete footing
and wall work and steel building fabrication which is claimed under the Scope Rule.
Form 1
Page 3
Award No. 33467
Docket No. MW-32500
99-3-95-3-317
Careful analysis
of
the record evidence leaves us unpersuaded that the July 27,
1993 letter
of
notice was procedurally defective or substantively inadequate under Rule
52 (a) or the December 11, 1981 Letter
of
Agreement. See Third Division Awards
30185, 30063 and 29981. Similarly, the Organization has not carried its burden
of
persuasion on this evidentiary record with regard to the alleged violation
of
Rule 1Scope. In that connection, this Board held in Third Division Award 32333 as follows:
"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."
See also Third Division Award 32433 . Nothing in the present record provides any basis
for deviating from the cited line
of
authoritative precedent involving these same Parties,
the same issues, essentially identical facts and the same contract language.
AWARD
Claim denied.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 22nd day
of
September 1999.
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