"Claim of the System Committee of the Brotherhood that:

1. The Agreement was violated when the Carrier assigned outside forces

(Dunn Construction Company) to perform the work of setting forms,

tying steel, placing and finishing concrete and removing forms at the

Dixie Hub Center, Birmingham, Alabama on November 15, 1994 and

continuing (System File B-820-1/MWC 95-01-12AA SLF).

2. As a consequence of the aforesaid violation, Messrs. R. A. Smith, B. E.

Colburn, H. W. Vaughn, B. G. Tribble and T. M. Bennett shall each

be compensated at their respective rates of pay for an equal

proportionate share of the total number of man-hours expended by

the outside forces in the performance of the above-described work."

Parties to said dispute were given due notice of hearing thereon.

By notice dated June 23, 1994, the Carrier advised the Organization of its intent to contract out work involving the expansion of the Intermodal Hubs located at Memphis and Birmingham. According to the Carrier's notice, the initial intention was to contract out (1) grading including clearing, demolition and grubbing; (2) placement of engineered fill material; (3) storm water drainage systems; (4) asphalt paving and associated traffic control; (5) construction of concrete craneways; (6) construction of concrete light tower foundations; (7) construction of concrete dolly pads; (8) track construction, removal and relocations; (9) crossing construction; and (10) fencing. According to the Carrier's notice "[tjhe Carrier does not possess the sufficient equipment nor the expertise to properly perform this work."

As shown by the Carrier's letter dated August 18, 1994, conferences between the parties on July 29 and August 17, 1994, yielded agreement that the Carrier's forces would construct concrete light tower foundations, concrete dolly pads, trackage including removal and relocation, and track road crossings, but that a contractor would perform grading including clearing, demolition and grubbing, placement of engineered fill material, storm sewer and drainage construction, installation of asphalt paving along with associated traffic control and fencing. However, as indicated in that letter, "[t]he construction of concrete craneways is an open issue and will be decided prior to the start of construction."

By letter dated September 15, 1994, the Carrier advised the Organization that ". . . we have decided to contract the construction of the concrete craneways for the Intermodal Hub expansion at Birmingham, Alabama." The Organization objected to the contracting out of that work. The Carrier gave the work to Dunn Construction Company. This claim followed for the work at Birmingham.

The Carrier's argument on the property that the Organization's claim must fail because of a lack of demonstration of exclusive performance of the work is not persuasive. "Exclusive performance of the work by covered employees is not required in contracting out disputes." See Third Division Award 36603 and Awards cited therein. Under Rule 99, the work in dispute - construction of the concrete craneways for the Intermodal Hub expansion at Birmingham - is clearly ". . . work within the scope of the applicable schedule agreement. . ." for these employees.

Turning to the work, according to the claim the Organization's specific protest is the contracting ". . . to perform the work of setting forms, tying steel, placing and finishing concrete and removing forms at the Dixie Hub Center, Birmingham. . . :' According to the Carrier's September 22, 1994 letter:

"3. Design of the craneway is very complex and construction

must be handled in such a manner to handle extremely

high wheel load. The concrete structure as well as the

base material and subgrade must all be constructed to

very high standards and the contractor must be

responsible for all aspects in order to guarantee the

outcome of the job. No part of this construction can be

piecemealed out as it would be impossible to ensure

responsibility of structural integrity of final product. We

have no obligation to piecemeal a project of this type.

Also, this is not the normal concrete slab construction

that the B&B Department constructs for driveways,

walkway, etc.

4. The company possesses neither the specialized equipment

nor the special skills required, nor is the company

adequately equipped to handle the work and to complete

the new construction within the allotted time."

According to a July 18,1995 letter from the Carrier:

"The work involved was to form and pour concrete craneways for equipment to load intermodal platforms. Approximately 3,912 cubic yards of concrete for 9,726 linear feet o f 8 ' w ide platforms... "

" 3. As for . . . [the] reference t o driveways, that is exactly

what the craneways are - a little thicker, a little more

reinforced, but a driveway nonetheless. This job would

have been very little challenge to us, considering some of

the projects we have successfully completed. This

craneway is far less complex than the scale pits, diesel

shop inspection pits, and pollutant retaining walls

meeting exacting EPA standards that B&B has poured in

the past. It also does not have to handle nearly as high a

wheel load as B&B's many bridge piers over which diesel

engines and loaded grain cars weighing far more than a

crane must pass on a daily basis ....

4. The craneway job required no tools that were not already

owned by BN or that could not have been rented or

purchased locally. There were no skills required that this

gang does not possess, and inspection of some of our

other work will prove this to be the case. . . :'

". . . The Carrier did not have adequate forces and equipment to perform the massive project and be able to complete quickly enough to handle the increased intermodal traffic.

difference .... [T]he design of the craneway is very complex and

construction must be handled in such a manner to handle

extremely high wheel load. The concrete structure as well as the

base material and subgrade must all be constructed to very high

standards and the contractor must be responsible for an aspects in

order to guarantee the outcome of the job. No part of this

construction can be piecemealed out as it would be impossible to

ensure responsibility of structural integrity of the final product ....

[C]raneway construction is not the normal concrete slab

construction that the Bridge and Building Department constructs

for driveways and walkways .

. . . In this case, the placing of the concrete was just one portion of an extensive project which included the placement of engineered fill material, the installation of storm water drainage systems, asphalt paving and traffic control, construction of light tower foundations, construction of dolly pad, track construction and relocation, crossing construction and the installation of fence around the facility. It is well established that the Carrier is not required to piecemeal a project of this size in order to provide employees represented by the Organization work. However, in this case some of the work was performed by Carrier forces. However, since the Carrier's forces did not have the expertise to construct the craaeway to the rigid specifications required, the work was contracted."

constructed driveways and more complex structures, and the work claimed ". . . setting forms, tying steel, placing and finishing concrete and removing forms at the Dixie Hub Center, Birmingham. . . :' - precisely describes that kind of work which the employees have previously performed. Thus, at first blush, it appears that this work could have been performed by Maintenance of Way forces.

But there is more to this case. On the property and as set forth in the above quoted letters, the Carrier consistently maintained that it was not obligated to piecemeal the work on the craneways by assigning some work to an outside contractor and some work to covered employees. Precedent exists for the principle that a Carrier is not obligated to piecemeal a contracted project. See e.g, Third Division Awards 34123 (". . . it is an established principle that a Carrier is not required to piecemeal a large project in order to provide some portion of the work to the Organization-represented employees"); 31526 (". . . the Carrier need not piecemeal . . ."); 29187 (". . . insufficient support for the contention that the Carrier was required to `piecemeal' a portion of the work to Maintenance of Way employees").

The expansion of the Intermodal Hub at Birmingham was a large project. It appears at first that the Carrier desired to contract out the vast majority (if not all) of the work. See the Carrier's initial notice (where the Carrier notified the Organization that it was going to contract out grading including clearing, demolition and grubbing; placement of engineered fill material; storm water drainage systems; asphalt paving and associated traffic control; construction of concrete craneways; construction of concrete light tower foundations; construction of concrete dolly pads; track construction, removal and relocations; crossing construction; and fencing). After conferences between the parties, agreement was reached that the Carrier's forces would construct concrete light tower foundations, concrete dolly pads, trackage including removal and relocation, and track road crossings, but that a contractor would perform grading including clearing, demolition and grubbing, placement of engineered fill material, storm sewer and drainage construction, installation of asphalt paving along with associated traffic control and fencing. What is significant here is that the craneway work claimed by the Organization Le, °1. . . the work of setting forms, tying steel, placing and finishing concrete and removing forms . . ." - is part and parcel of the overall craneway construction work, which, according to the Carrier's description of the work, also includes placement of the base material and subgrade for the craneways. But, as stated in the Carrier's August 18, 1994 letter, after conferences the Organization agreed that".. . a contractor would perform grading [and] . . . placement of engineered fill material . . . ." [emphasis added]. The only disputed work as set forth in the claim concerns ". . . the work of setting

forms, tying steel, placing and finishing concrete and removing forms. . . :' Thus, with respect to the craneway, the Organization sought to piecemeal the construction of that portion of the craneways identified in the claim from the work of placement of the base material and subgrade for the craneways which the Organization previously agreed could be performed by a contractor. Under established precedent, the Carrier is not obligated to piecemeal the work in that fashion. We must therefore deny the claim.

In light of the above, the Carrier's other arguments are moot.

AWARD