Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35735
Docket No. MW-33422
01-3-96-3-785
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 (former Chicago &
( North Western Transportation Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (McKay Construction) to perform Maintenance ofWay work
(breaking asphalt and concrete and hauling said materials away) on
the road crossing project at Main Street, Glen Ellyn, Illinois on
April 17 through 23,1995 (System File 9KB-6183T/950426 CNW).
(2) The Agreement was further violated when the Carrier failed and
refused to confer with the General Chairman in a good-faith
attempt to reach an understanding concerning the work in question
as required by Rule I (b).
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Mr. K. Krefft shall be allowed forty (40) hours, pay at the
common machine operator's rate and Messrs. T. Neumaier, R.
Probst and R.Taylor shall each be allowed twenty-four (24) hours,
pay at the dump truck operator's rate."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
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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 Scope Rule of the governing Agreement and the applicable provisions of the
so-called Berge- Hopkins Letter Agreement of December 11,1981 read in pertinent part
as follows:
"RULE1-SCOPE
(a) The rules contained herein shall govern the hours
of
service,
working conditions and rates of pay of all employes in any and all
subdepartments of the Maintenance
of
Way and Structures
Department, (formerly covered by separate agreements with the
C&NW, CStPM&O, CGW, FtDDM&S, DM&CI, and MI)
represented by the Brotherhood of Maintenance of Way Employes.
(b) Employes included within the scope
of
this Agreement in the
Maintenance of Way and Structures Department shall perform all
work in connection with the construction, maintenance, repair and
dismantling of tracks, structures and other facilities used in the
operation of the Company in the performance of common carrier
service on the operating property. This paragraph does not pertain
to the abandonment of lines authorized by the Interstate Commerce
Commission.
By agreement between the Company and the General Chairman, work as
described in the preceding paragraph which is customarily performed by
employes described herein, may be let to contractors and be performed by
contractor's forces. However, such work may only be contracted provided
Form 1 Award No. 35735
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01-3-96-3-785
that special skills not possessed by the Company's employes, special
equipment not owned by the Company, or special material available only
when applied or installed through supplier, are required; or unless work
is such that the Company is not adequately equipped to handle the work;
or, time requirements must be met which are beyond the capabilities of
Company forces to meet.
In the event the Company plans to contract out work because of one of the
criteria described herein, it shall notify the General Chairman of the
Brotherhood in writing as far in advance of the date of the contracting
transaction as is practicable and in any event not less than fifteen (15) days
prior thereto, except in `emergency time requirements, cases. If the
General Chairman or his representative, requests a meeting to discuss
matters relating to the said contracting transaction, the designated
representative of the Company shall promptly meet with him for that
uuruose. The Company and the Brotherhood representatives shall make
a good faith attempt to reach an understanding concerning said
contracting, but if no understanding is reached, the Company may
nevertheless proceed with said contracting and the Brotherhood may file
and progress claims in connection therewith.
The carriers assure you that they will assert good-faith efforts to reduce
the incidence of subcontracting and increase the use of their maintenance
of way forces to the extent practicable, including the procurement of rental
equipment and operation thereof by carrier employees.
The Parties jointly reaffirm the intent of Article IV of the May 17, 1968
Agreement that advance notice requirements be strictly adhered to and
encourage the Parties locally to take advantage of the good faith
discussions provided for to reconcile any differences. In the interests of
improving communications between the parties on subcontracting, the
advance notices shall identify the work to be contracted and the reasons
therefor." (Emphasis added.)
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The facts giving rise to the instant claim are not in material conflict in the record
before us. Thus, it is undisputed that by letter dated April 5, 1995, Carrier's Assistant
Vice-President Labor Relations-Non-Operating sent the BMWE General Chairman
written Notice
of
Intent to subcontract out certain work in connection with crossing
renewals, as follows:
"Please accept this as the Carrier's notice required under Rule 1(b)
of
the
BMWE Agreement
of
our intention to sub-contract certain work in the
connection with crossing renewal projects. Specifically, the Carrier
intends to use contractors to perform asphalt paving in connection with
crossing rehabilitation projects. Crossing renewals are being performed
in conjunction with state highway departments, along with projects
of
various cities and counties. The work to be performed by a contractor
involves the laying and paving
of
asphalt at crossing locations that
intersect with various streets, highways, etc. We will also require, at some
locations, to have the contractor use concrete saws, concrete breakers and
vibratory rollers in order to handle the work that the Transportation
Company is not experienced in and for which it does not have the
equipment. Chicago and North Western forces will perform all work
related to track rehabilitations, such as surfacing and placing
of
flange
rails. In most cases, the work will be performed at the direction and, in
some cases, at the cost
of
outside agencies."
Nor is it disputed that the BMWE General Chairman promptly responded by
letter
of
April 11, 1995, reading in pertinent part as follows:
"Please refer to your April 5, 1995 letter received by this office on April
11,1995 wherein you advise
of
the Carrier's intention to subcontract work
in the connection with crossing renewal projects.
The Brotherhood requests an immediate conference of this notice in an
effort to reach an understanding in accordance with Rule 1 scope, Section
(b), Paragraph 3. It is imperative the Brotherhood be able to present its
position BEFORE the Carrier commits itself to using outside contractors.
Rule 1(b), Paragraph 2 provides in pertinent part: `*** However, such
work may only be contracted provided that special skills not possessed by
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the Company's employes, special equipment not owned by the Company,
or special material available only when applied or installed through
supplier, are required; or unless work is such that the Company is not
adequately equipped to handle the work; or, time requirements must be
met which are beyond the capabilities of Company forces to meet.' The
April 5, 1995 Notice has failed to clearly identify any circumstances or
positions which legitimately falls within these five enumerated exceptions."
Notwithstanding the Carrier's manifest and acknowledged notice/confer
responsibility under the above-cited Agreement provisions and despite meeting its notice
obligation, the Carrier inexplicably ignored the General Chairman's request for a
conference and simply subcontracted the asphalt paving preparation work at issue in
this claim. It is undisputed that, without even acknowledging let alone acceding to the
General Chairman's plainly worded invocation of the Organization's right to a precontracting confere
to perform paving removal, paving and related clean-up work at the Main Street
Crossing, Glen Ellyn, Illinois, during the period April 17 through 23,1995. The Carrier
did not dispute that four employees of the outside contractor utilized ordinary
Maintenance of Way equipment such as a backhoe and dump trucks to perform the
grade crossing repair work. Such work consisted of breaking and removing old asphalt,
concrete and roadbed using a backhoe tractor equipped with a breaker attachment on
April 17 through 23,1995 and utilizing contractor owned dump trucks to haul away the
spoil from the crossing. Nor was the question that a pre-contracting good faith
conference is required in such a situation ever persuasively contested on this record.
The Carrier's procedural objection to an alleged improper change in the nature
of the claim is not only de novo but misplaced, because the claim perfected on the
property and appealed to the Board plainly grieves the refusal/failure of the Carrier to
grant the General Chairman's timely and unambiguous request for a pre-contracting
conference. In denying the claim, the Carrier also pointed out that some prior
arbitration tribunals have found adequate justification for contracting out such work
due to time constraints, lack of equipment or inadequate manpower. But none of those
precedents involved a complete and unmitigated failure or refusal to grant a timely,
contractually mandated request for a pre-contracting conference which, by mutual
intent of the contracting Parties, is supposed to be a forum for good faith discussion of
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01-3-96-3-785
precisely these kinds of issues that could have and should have been discussed at the
requested conference in this case. Finally, notwithstanding the Carrier's defense that
the Claimant's were "fully employed" on claim dates, their loss of work opportunity
coupled with the blatant, unexplained and unmitigated violation of the Carrier's
acknowledged contractual obligation to meet and confer with the General Chairman
before contracting out the work warrants a sustaining award by the Board. See Third
Division Awards 31752, 31754, 31755, 31756, 31760, 31777.
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 24th day of October, 2001.