Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36069
Docket No. MW-34869
02-3-98-3-586
The Third Division consisted
of
the regular members and in addition Referee
Dana Edward Eischen when award was rendered.
(Brotherhood
of
Maintenance
of Way
Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Clinchfield Railroad)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Orgotherm Welds, Inc.) to perform Welding Subdepartment
work (removing joint bars, leveling rail and setting molds for weld
compound for rail ends to be welded together) at Mile Post 138.0,
Erwin, Tennessee to Mile Post 173.0, Kona, North Carolina and at
Mile Post 234, Thermal, North Carolina to Mile Post 207, North
Cove, North Carolina on June 2 through July 18, 1997 [Carrier's
Files 12(97-2192) and 12(97-2193) CLR].
(2) The Agreement was further violated when the Carrier 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 48 and the December 11, 1981 Letter
of
Understanding.
(3) As a consequence
of
the violations referred to in Parts (1) and/or (2)
above, Messrs. R. E. White, W. N. Williams, B. R. Peterson, R. L.
Stephens, M. L. Thomas and J. L. Fields shall each be allowed two
hundred seventy-two (272) hours' pay at the applicable welder's
rate."
Form 1 Award No. 36069
Page 2 Docket No. MW-34869
02-3-98-3-586
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.
During late Spring and early Summer 1997, the Carrier undertook the welding
of
approximately 1100 joints in the rail created by Production Gang installation
of
new
ties and rail on the Blue Ridge Subdivision of the Appalachian Service Lane, on the
former Clinchfield Railroad (CRR). Because installation of new ties and rail requires
such a large number of welds, additional local welding positions were advertised and
filled and all Welders with seniority on the CRR, including the Claimants, were assigned
to this work. Following timely notice to and discussions with the General Chairman, the
Carrier elected, over the objections
of
the General Chairman, to contract for and utilize
additional Welders from an outside contractor to work along with the BMWErepresented Claimants in order to expeditiously complete this project.
Six days after the May 27 conference concerning the Carrier's notice, i.e., on June
2 and continuing through July 18,1997, outside forces from Orgotherm Welds, Inc. were
assigned to perform the welding work of removing joint bars, leveling rail and setting
molds for weld compound for rail ends to be welded together from Mile Post 138.0,
Erwin, Tennessee, to Mile Post 173.0, Kona, North Carolina. It is not disputed that
three employees of the outside contractor, working alongside Claimants R E. White, W.
N. Williams and B. R Peterson, expended 272 hours each performing said rail welding
work. Concurrently, three other employees of the outside contractor, working alongside
Claimants R L. Stephens, M. L. Thomas and J. L. Fields, expended 272 hours each
performing ordinary rail welding work from Mile Post 234, Thermal, North Carolina,
to Mile Post 207, North Cove, North Carolina.
Form 1 Award No. 36069
Page 3 Docket No. MW-34869
02-3-98-3-586
This dispute was initially filed and progressed as two separate claims during the
on-property handling,
i.e.,
one claim for Claimants R E. White, W. N. Williams and B.
R. Peterson for work of the contractor from Mile Post 138.0, Erwin, Tennessee, to Mile
Post 173.0, Kona, North Carolina, and another claim for Claimants R L. Stephens, M.
L. Thomas and J. L. Fields for work of the contractor from Mile Post 234, Thermal,
North Carolina, to Mile Post 207, North Cove, North Carolina. Inasmuch as the pivotal
issues central to both claims are identical, they have been appropriately combined upon
presentation to the Board. See First Division Award 25212.
The claims are premised on an alleged failure by the Carrier to exhaust good-
faith efforts to minimize subcontracting of scope-covered work, as required by the
December 11,1981 Hopkins-Berge Letter of Understanding and an alleged violation of
Rule 48-CONTRACTING OUT, which reads as follows:
"In the event a carrier plans to contract out work within the scope of the
applicable schedule agreement, the carrier shall notify the General
Chairman of the organization involved in writing as far in advance of the
date of the contracting transaction as is practicable and in any event not
less than 15 days prior thereto.
If the General Chairman, or his representative, requests a meeting to
discuss matters relating to the said contracting transaction, the designated
representative of the carrier shall promptly meet with him for that
purpose. Said carrier and organization representatives shall make a good
faith attempt to reach an understanding concerning said contracting, but
if no understanding is reached the carrier may nevertheless proceed with
said contracting, and the organization may file and progress claims in
connection therewith.
Nothing in this Rule shall affect the existing rights of either party 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. (Article IV, May 17, 1968, National Agreement.)"
As handled to stalemate on the property, the claims apparently concede notice
and conference, but allege that the Carrier failed to adequately justify its decision to
Form 1 Award No. 36069
Page 4 Docket No. MW-34869
02-3-98-3-586
contract for additional Welders and was "disingenuous" when it asserted unavailability
of men and inadequacy of equipment necessary to timely complete the welding project
in dispute. For its part, the Carrier declined the claim on grounds that: (1) "the
Clinchfield welding roster was exhausted during the period of your claim" (2)
°°(c)onsequently, sufficient qualified employees or equipment were not available to do the
work" and (3) "claimants did not suffer a loss of work or wages during the period of the
claim."
Our review of the record evidence persuades us that denial of these claims is
supported by the following authoritative precedent:
Third Division Award 16629
"Carrier did not claim that it lacked adequate laid up equipment to
perform the work. However, Organization did not deny on the property
that Carrier did not have forces laid qff in sufficient number and skill to
do the work. Organization argues that Rule 2(f) is intended to operate as
an exception to the reservation of work only if there is proved lack of both
equipment and men.
We do not agree; we said in Award 15011 (Wolf) in regard to the same
question between the same parties as here:
`The Rule requires that when there are not both men and
equipment available the work may be contracted out. The
sense is that if Carrier has both the men and equipment it
ought to use them to do the work. If either is missing it does
not have both, and may then contract the work.'"
Third Division Award 29221
"Regarding the merits of the Carrier's decision to contract the work in
question the Board finds its decision considered and within the permissible
parameters for contracting encompassed in Rule 2. In this connection,
there are several significant factors which, in combination with each other,
justify the contracting under the unique circumstances of this case. They
include (1) the fact no employees were on furlough in the seniority district,
Form 1 Award No. 36069
Page 5 Docket No. MW-34869
02-3-98-3-586
(2) the fact all active employees and equipment were committed elsewhere,
and (3) a certain degree
of
urgency to the project. The Organization did
argue that the Carrier could have reorganized, reallocated, and
rescheduled the work to make the Carrier forces available. The Carrier
responded with validity that the project was driven by shipper concerns,
and a delay would have resulted in a
loss of
business. We also note that the
sheer magnitude of the project (3-4 months) speaks to the practicalities of
delaying other projects in order to utilize Carrier forces."
Third Division Award 29204
"In the final analysis, Carrier concluded that since this was a large
project, there was a certain urgency in getting it completed, and current
forces were elsewhere employed, it was necessary to utilize outside forces.
Under all of the circumstances present here, this Board cannot dispute that
decision."
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 18th day
of
June, 2002.