Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37434
Docket No. MW-36421
05-3-00-3-664
The Third Division consisted of the regular members and in addition Referee Ann
S. Kenis when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE
:
(BNSF Railway Company (former Burlington
( Northern Railroad Company)
STATEMENT OF CLAIM
:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces (Kinley Construction) to perform -Maintenance of Way
work involved in constructing a new fueling station at Sioux City,
Iowa on the Marshall Subdivision of the Dakota Division
beginning September 16, 1998 and continuing (System File T-D1692-B/11-99-0142 BNR).
(2) The Carrier violated the Agreement when it assigned outside
forces (Kinley Construction) to perform Maintenance of Way
work involved in constructing a new fueling station at Sioux City,
Iowa on the Marshall Subdivision of the Dakota Division
beginning June 14, 1999 and continuing (System File T-D-1870B/11-99-0530).
(3) The Agreement was further violated when the Carrier failed to
provide the General Chairman with a proper notice of its intent to
contract out the aforesaid work or make a good faith effort to
reduce the incidence of subcontracting and increase the use of its
Maintenance of Way forces as required by Rule 55 and Appendix
Y.
Form 1 Award No. 37434
Page 2 Docket No. MW-36421
05-3-00-3-664
(4) As a consequence of the violations referred to in Parts (1) and/or
(3) above, Water Service Foreman E. J. DeSchepper, Water
Service Mechanic C. W. Otto, Foreman B. J. Johnson, First Class
Carpenters R. J. Hillestad, J. N. Grohs, Truck Drivers J. M.
Eitreim, S. D. Berge, M. W. Koepp, V. G. Van Voorst, D. A.
Gilberts, K. J. Buehler, Blacksmith D. G. Skillman, Group 2
Machine Operators R. A. Nikstad, L. D. Nelson, M. L. Ahnberg,
W. E. Silkenson, S. A. Ahnberg and M. L. Hutchinson shall each
be compensated for an equal and proportionate share of all
straight time and overtime hours worked by the contractor
beginning on September 16, 1998 and continuing until the
violation ceases.
(5) As a consequence of the violations referred to in Parts (2) and/or
(3) above, Water Service Foreman E. J. DeSchepper, Water
Service Mechanic C. W. Otto, Foreman L. M. Enze, First Class
Carpenters R J. Hillestad, J. N. Grohs, B. J. Johnson, Truck
Drivers J. M. Eitreim, S. D. Berge, D. A. Gilberts, Blacksmith D.
G. Skillman, Group 2 Machine Operators L. D. Nelson, M. L.
Ahnberg, W. E. Silkenson, S. A. Ahnberg, M. L. Hutchinson and
Group 3 Machine Operator J. P. De Schepper shall each be
compensated for an equal and proportionate share of all straight
time and overtime hours worked by the contractor beginning on
June 14, 1999 and continuing until the violation ceases."'
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. 37434.
Page 3 Docket No. MW-36421
05-3-00-3-664
By letter dated May 14, 1998, the Carrier notified the Organization that it
intended to contract for the construction of new wastewater and fueling facilities at
Sioux City, Iowa. The Carrier listed a variety of reasons why it intended to contract for
the construction, including special equipment and skills not possessed by Carrier
forces, and licensing problems.
The parties met on June 9, 1998 to discuss the project. No agreement was
reached and the Organization thereafter filed and progressed two separate claims. The
first involves phase one of the construction project beginning on September 16, 1998.
The second claim is for the construction work on phase two of the project beginning
June 14, 1999.
The circumstances of this case and the arguments advanced by the parties have
been addressed in a closely similar dispute. In Third Division Award 37434, the Board
held that the Organization failed to establish that the work in question was customarily
performed by BMWE-represented forces. As in that case, we must rule to deny the
claim.
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 22nd day of March, 2005.