Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36156
Docket No. MW-34931
02-3-98-3-668
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:
(Burlington Northern Santa Fe (former Burlington
( Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside forces
(Woods Construction) to perform Maintenance
of
Way and Structures
Department work (installation
of
water and sewer line) in Alliance,
Nebraska Yards beginning September 6, 1994 and continuing (System
File C-95-C100-11/MWA 95-01-17AB BNR).
(2) As a consequence
of
the violation referred to in Part (1) above, Messrs.
L E. Quick, R. K. Frahm and P. J. Sherlock shall each be compensated
at their respective and appropriate rates of
pay
for an equal
proportionate share of the total number
of
hours expended by the
outside forces in the performance
of
the work in question beginning
September 6, 1994 and continuing until the violation ceased."
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.
Form 1 Award No. 36156
Page 2 Docket No. MW-34931
02-3-98-3-668
Under date of June 14,1994, the Carrier presented the General Chairman with a notice
of its intention to utilize outside forces to perform the work of constructing a Roadway Work
Equipment Building at Alliance, Nebraska. That notice described the work which the Carrier
proposed to subcontract, as follows:
"The following is a description of the work involved:
Construct Work Equipment Building
Main floor 60 Ft. X 104 Ft. with concrete foundation and floor. Construction
will be rigid frame metal building.
Construct an Asphalt Parking Lot.
Approximately 50 Ft. X 50 Ft. - 2500 Sq. Ft. including 3" asphalt and base
material."
In the July 18, 1994 conference held in accordance with the Note to Rule 55, the
General Chairman and the Carrier's representatives discussed the Carrier's reasons for
wishing to contract out that described work. However, because the notice made no reference
whatsoever to water or sewer line work, there was no discussion of that subject. When no
Agreement was reached concerning the construction Work Equipment Building, the Carrier
went forward with the contracting out. After the Claimants reported to the General Chairman
that the outside forces were in fact performing such water and sewer line work, the
Organization filed the instant claim which remained unresolved on the property.
In all such cases, it is critically important to focus as specifically as the evidentiary
record permits on the work that is the subject of the contract violation. In this particular case,
the generically described work of installation of water and sewer line in Alliance, Nebraska
Yards beginning September 6,1994 and continu ing was described with particularity and never
refuted by the Carrier, in a letter from Claimant Sherlock to General Chairman Joynt, dated
December 21,19%, as quoted in the General Chairman's letter of January 8,1998, to Director
-Labor Relations D. J. Merrell:
".
. . I will again outline for you the work that was performed by the contractor
and is being claimed in this case.
Outside of the building:
Approximately 600 feet of water service line and tap into city water main.
Form 1 Award No. 36156
Page 3 Docket No. MW-34931
02-3-98-3-668
Approximately 475 feet of sanitary sewer line and tie into existing sanitary sewer
line.
Approximately 550 feet of gravity industrial sewer line. Approximately 250 feet
of forced industrial sewer lines.
Approximately 225 feet of air line for the industrial sewer
lift
station.
Approximately 425 feet of natural gas line.
Also installed industrial sewer
lift
station with air
lift
pump, a small self
contained grit chamber, two manholes and at least six sewer cleanouts.
Inside the building:
Installed drains, vents, and industrial sewer lines for the inspection pit.
Installed drains, vents, and industrial sewer lines to drain the entire floor and
track area, approximately 80 feet X 120 feet (5 tracks).
Installed floor drains, vents sanitary sewer and water lines for two bathrooms,
janitor room and a lunch/break room.
Installed a water meter.
Installed water lines overhead that drop down for water hose access all over the
building.
Installed air lines overhead that drop down for air hose access all over the
building.
Low pressure natural gas line for the heating system.
Installed the heating system."
As the handling on the property plainly shows, the crux of this case is that the Carrier's
June 14, 1994 notice makes no reference at all to its intent to subcontract the installation of
water and sewer line water work in connection with the construction of the Roadway Work
Equipment Building at Alliance, Nebraska. Nor was the subcontracting of water and sewer
line installation ever mentioned or discussed during the ensuing conferences requested by the
Form 1 Award No. 36156
Page 4 Docket No. MW-34931
02-3-98-3-668
General Chairman. In that connection, the following facts and arguments set forth in the
General Chairman's January 8, 1998 appeal of the claim denials are not effectively refuted by
the Carrier:
"The main problem for the Carrier is the fact that you never provided me with
a notice of the Carrier's intent to contract out the water service work. The
Carrier provided a notice to me stating they intended to contract the
construction of a Roadway Equipment Building at Alliance, Nebraska. The
notice stated;
The following is a description of the work involved:
Construct Work Equipment Building
Main floor 60 Ft. X 104 Ft. with concrete foundation and floor.
Construction will be rigid frame metal building.
- Construct an Asphalt Parking Lot.
Approximately 50 Ft. X 50 Ft. - 2500 Sq.Ft. including 3" asphalt
and base material.
This is the description of the work that the Carrier provided me It clea says
nothing about contracting out the water service work. Furthermore as I have
oreviouslv stated, the water service work was never mentioned during the
contracting conference either. The notice is to provide me with advance notice
of what work the Carrier plans to contract out. The conference is intended to
allow the parties to discuss the work the Carrier wants to contract out and try
to reach some agreement on that work. If I am never advised of certain work
being contracted out and it is never mentioned or discussed during a conference,
the only logical conclusion must be that the water service work was not part of
the work the Carrier intended to contract out The Carrier has failed to provide
me with a notice of their intent to contract out this work and they are in clear
violation of the note to Rule 55 " (Emphasis added)
For its part, the Carrier urged that the General Chairman should have "assumed" that
water and sewer line installation was encompassed in the above-quoted June 14,1994 notice
and/or that during the ensuing conference the Organization representatives were obliged to
ask whether the Carrier intended to subcontract such water and sewer line installation work.
We do not find the Carrier's position tenable because the plain intent of the Note to Rule 55
Form 1 Award No.
36156
Page
5
Docket No.
MW-34931
02-3-98-3-668
and Appendix Y is to place on the Carrier the duty of disclosure in such a case, so that the
Organization can make an informed judgment about exercising its conference rights and the
Parties can make a good-faith effort to reach a meeting of the minds.
It would be contrary to the manifest mutual intent of the contracting Parties for the
Board to accept the Carrier's theory that it can transform its contractual duty of full disclosure
and good faith discussion into an obligation on the Organization to interrogate the Carrier
about subject matters not reasonably included in the notice served by the Carrier. In that
regard, the record amply demonstrates that in other such new construction cases the Carrier
has served and discussed advance disclosure notices, inclusive of water and sewer work, prior
to subcontracting. In this case, the Carrier's failure to do so effectively precluded any
possibility of discussion of the Carrier's reasons for subcontracting the water and sewer service
work now in dispute and thus prevented good faith effort to reach an understanding
concerning the contracting out of that work. For that reason, we shall sustain this claim.
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 20th day of August 2002.