Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35822
Docket No. MW-32758
01-3-96-3-59
The Third Division consisted of the regular members and in addition Referee Dana E.
Eischen when award was rendered.
(Brotherhood of Maintenance of Way Employee
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Western Lines)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside forces
(Dobbas Construction Company) to break up and remove concrete,
excavate, remove and load soil, construct a Ground Water Treatment
Plant, install extraction wells and pump and treat the system in
conjunction with electrical control, concrete slabs and security fencing
at the Waste Water Treatment Plant at Roseville, California beginning
July 22, 1994 and continuing (Carrier's File BMW 95-46 SPW).
(2) As a consequence of the violation referred to in Part (1) above, the
Claimants listed below shall ` . . . each be paid his proportionate share
of one thousand six hundred and forty (1,640) man-hours of additional
compensation at the applicable pro-rata rate of their respective assigned
Carrier positions and, in addition thereto, that each named Claimant be
paid his proportionate share of three hundred and seventy-two (372)
man-hours at the applicable time and one-half (overtime) rate of his
regularly assigned position because of the Agreement violation cited and
outlined above.'
D. R Shelley
R D. Holgren
V. Bravo
J. W. Beaver
L. E. Wood
A. D. Landsaw"
T. J. Ferina
R D. Robinson
K. D. Christian
J. C. Schindehette
J. R Bovard
Form 1 Award No. 35822
Page 2 Docket No. MW-32758
01-3-96-3-59
FINDINGS:
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.
Claimants hold seniority in their respective classes on the Western Seniority District
within the Water Service Subdepartment. On the dates pertinent to the instant dispute, they.
were all regularly assigned to Water Service Gang No. 10 headquartered in Roseville Yard,
Roseville, California. The present dispute concerns the claim that these Water Service
Subdepartment employees were contractually entitled to perform subcontracted work
of
excavating and loading into gondolas approximately 25,000 to 30,000 cubic yards
of
contaminated soil in connection with the remediation
of
an outdated waste water treatment
plant in Roseville Yard.
In that connection, by letter dated June 13,1994, pursuant to Article IV of the May 17,
1968 National Agreement, the Carrier's Manager Labor Relations sent the BMWE General
Chairman written notice of intent to subcontract and invitation to conference, reading in
pertinent part as follows:
"This construction will involve the excavation and loading into gondolas of
approximately 25,000 to 30,000 cubic yards of contaminated soil, along with the
installation of extraction wells, pumping and treating system and associated
work involving electrical control, concrete slabs, security fencing, etc.
It is the Carrier's intention to handle the soil excavation and loading into
gondolas by an outside contractor. At the present time, there are no furloughed
water service employees on this seniority district.
Currently employed water service personnel will be used to install the entire
mechanical system at this location as described above. Also, Company Electrical
Form 1 Award No. 35822
Page 3 Docket No. MW-32758
01-3-96-3-59
forces and Bridge & Building forces will handle all work associated with their
respective crafts at this location."
A timely conference was requested by the Organization and the parties did meet and
confer to discuss the Carrier's subcontracting plan, but they reached no mutual
understanding. Following the conference, the Carrierwent ahead and contracted out thework
of excavating and removing the 25,000-30,000 cubic yards of contaminated soil. The General
Chairman then filed the instant claim, reading in pertinent part as follows:
"Commencing on Friday, July 22, 1994, and subsequent dates thereto, the
carrier, by choice and at its own peril, elected to engage the services of the
Dobbas Construction Company and its work force (employes) for the purpose
of dismantling, by excavation thereof, existing holding ponds which to
accomplish and finish the project consisted of breaking of cement, excavation,
loading and transporting of approximately twenty-five thousand (25,000) to
thirty thousand (30,000) cubic yards of contaminated soil and other component
materials with the loading thereof in gondolas appropriately covered with
plastic in preparation for shipment to a disposal site. The work project also
encompassed the installation of extraction wells, pumping and treating the
system with electrical control, pouring and finishing of concrete slabs, and
security fencing; all to serve the Ground Water Treatment Plant at Roseville,
California.
x x x
Claimants listed and identified on Attachment "A" of this record were able,
fully qualified, available, and willing to perform any and all of the work that
was performed by the Dobbas Construction Company and its employes, and
would have enthusiastically and gladly performed such work had the Carrier's
Subordinate Officers authorized and responsible for delegating said workwould
have caved, assigned and used them to do so, inasmuch as work of the type and
nature described within the body of this correspondence is work which is
commensurate with the duties, responsibilities, characteristics and other
requirements of the positions held and maintained by Water Service
Subdepartment personnel, and is work that has customarily, historically and
traditionally been performed by such employes, often times on a daily basis
during their regular tour of duty as manifested by the herewith enclosed
individual statements . . .
x x x
Form 1 Award
No. 35822
Page 4 Docket
No. MW-32758
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It is our contention that the Carrier violated the terms and provisions of the
current Collective Bargaining Agreement when commencing on July 22, 1994
and subsequent days thereto it completely, totally and willfully ignored and
disregarded Claimants accumulated seniority rights within their respective
Classes, Subdepartment, seniority District and Division. That it further violated
that Agreement when on the claim dates it contracted out work of the type and
nature customarily, historically and traditionally performed by employes of the
Water Service Subdepartment (Electrical and Mechanical) to the Dobbas
Construction Company and its employes who have neither established nor hold
seniority rights within any craft or Subdepartment within the Railroad
Industry, and that it compounded said Agreement violation when the work
performed in the instant dispute outlined herein was contracted out without
benefit of a genuine good faith attempt or effort being made in reaching a
prudent and reasonable understanding concerning said contracting."
The Carrier denied the claim on various grounds and the matter remained unresolved
until appeal to the Board.
Belated arguments by the Organization that the Carrier failed to give adequate good
faith notice under Article IV and/or to confer in good faith under the Berge/Hopkins Letter
Agreement, raised de novo at the Board level, have not been considered in this case. It is al
noted that so far as the present record shows, currently employed Agreement-covered Water
Service personnel were used by the Carrier to install the mechanical systems at this location,
as described above, and that Carrier Electrical forces and Bridge & Building forces were
utilized for all work associated with their respective crafts in this project. The focus of the
claim then is on the subcontracting of breaking of cement, excavation, loading and
transporting of approximately 25,000 to 30,000 cubic yards of contaminated soil and other
component materials with the loading thereof in gondolas appropriately covered with plastic
in preparation for shipment to a disposal site.
Careful consideration of the undisputed record evidence reveals a "mixed practice" of
both Agreement-covered Water Department employees and subcontractor employees having
performed such excavation and gondola-car loading of contaminated soil in connection with
water treatment remediation projects. The record shows that on large-scale projects like the
one here under consideration, the Carrier has in the past subcontracted the work; whereas on
some projects of lesser scale, the Agreement-covered Water Department employees have also
done the excavation, soil removal and site preparation tasks, in addition to the installation of
extraction wells and pumps, which they performed in this case. In that connection, in the
course of handling the dispute on the property, the Organization offered statements by
employees that they had loaded contaminated soil into gondola cars in the past. In response,
Form 1 Award No. 35822
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the Carrier presented a statement from Utility Supervisor Strickland, conceding that
employees of the Carrier had performed similar work in the past on smaller scale jobs, but that
such large-scale work had been subcontracted, as follows:
"The Roseville Water Services have never done a job of this size at the Roseville
Waste Water Plant area. On October 29, 1984 a job of the same nature and in
the same area was started and completed on July 1,1985. The job that was done
in 1984 and 1985 consisted of removal of approx. 11,435 yards of sludge and
contaminated soil. The work in 1984 and 1985 was performed by an outside
contractor, I.T. Corporation, see attached copy dated May 31, 1985."
The Organization offered some evidence of some past performance of the work at issue,
but did not prove reservation by custom, practice or tradition. To the contrary, in handling
on the property the Organization neither denied nor refuted the Carrier's countervailing
evidence of "mixed practice" under the general Scope Rule of the controlling Agreement. This
claim is therefore denied for failure to persuasively prove a violation of the Scope Rule. See
Third Division Awards 33516, 32602, 32296.
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 14th day of November, 2001.