PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33470
Docket No. MW-32534
99-3-95-3-388
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 (Unistrut of Portland) to perform Bridge and Building
Subdepartment work `*** installed a metal frame on top of the
existing floor, then put in two foot (2') by two foot (21) floor panels
on the metal frame. Some of the floor panels were cut to size with
a jigsaw. ***, in the Hinkle Crest Building Communications Room,
Hinkle, Oregon on March 28 and 29, 1994 (System File C
34/940403).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper advance written notice
of its intention to contract out said work and 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, B&B Carpenters D. H. Hector and W. D. Huffman shall
each be allowed eighteen (18) hours, pay at the B&B First Class
Carpenter's straight time rate."
Form 1
Page 2
FINDINGS:
Award No. 33470
Docket No. MW-32534
99-3-95-3-388
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.
herein.
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
Parties to said dispute were given due notice
of
hearing thereon.
By letter
of
February 16,1994, Carrier's Director Labor Relations: Maintenance
of
Way/Signal notified the General Chairman
of
the BMWE as follows:
This is to advise of the Carriers intent to solicit bids to cover the
installation of a raised floor and the installation of an ADA ramp in the
Communication Center Crest Building at Hinkle, Oregon.
This work is being performed under that provision of the Agreement which
states, "Nothing in this rule shall affect prior and existing rights and
practice of either party in connection with contracting out." As
information, all employes on Roster 7003 are fully employed and therefore
the Carrier does not have the skilled manpower available to timely
perform the work described above.
Serving
of
this "Notice" is not to be construed as an indication that the
work described above necessarily falls within the "scope"
of
your
Agreement, nor as an indication that such work is necessarily reserved, as
a matter or practice, to those employees represented by the Brotherhood
of
Maintenance
of
Way Employes.
Additionally, I will be available to conference this Notice within the next
fifteen (15) days in accordance with Rule 52 of the Collective Bargaining
Agreement.
Form 1
Page 3
Award No. 33470
Docket No. MW-32534
99-3-95-3-388
Following a conference on February 22, 1994, the General Chairman notified
Carrier by letter
of
February 28, 1994 that he considered the foregoing notice
"procedurally defective," declined to agree to the contracting out and asserted a Scope
Rule claim to the work in question. Notwithstanding the Organization's protests,
Carrier contracted with Unistrut
of
Portland for construction
of
a raised floor in the
Communication Center Crest Building at Hinkle, Oregon. The contractor commenced
the work on March 28, 1994 and completed the floor on March 29, 1994. By letter
of
April 19, 1994 the General Chairman initiated the present claim which was denied at
all levels
of
handling on the property until appeal to this Board for final and binding
resolution.
The February 16,1994 letter
of
notice and associated pre-contracting conference
were not "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 reservation
of
the disputed work to Agreementcovered employees by express language in Rule 1-Scope and/or by custom
tradition
of
system-wide performance to the practical exclusion
of
others.
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.