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.
The Claimant L. H. Serna holds seniority as a Foreman in the Bridge and Building Sub-department as of January 16, 1978. Claimants J. Garcia, J. Rodriguez and A. Garcia hold seniority as Machine Operators in the Machine Sub-department as of September 15, 1997, October 18, 1996 and October 18, 1996, respectively. The Claimants also hold seniority as Track Laborers in the Track Sub-department.
On October 26, 2000, an adjacent property owner, concerned about the condition of a bridge along the Carrier's main line (a six-span, open deck timber pile bridge over the Oso Creek in Corpus Christi, Mile Post 149.71) contacted the Texas Railroad Commission (TRC). The TRC sent an inspector to evaluate the bridge. The condition of the bridge included "a cap almost fully displaced off the top of the piles . . . the bridge could have suffered a catastrophic failure under traffic at any time." The TRC contacted the Federal Railway Administration (FRA) to request authority to take the bridge out of service.
The Carrier subsequently voluntarily placed a five mile per hour restriction on the bridge and took it out of service for the performance of immediate repairs. An outside contractor, Lone Star Construction, performed the necessary repairs on Friday, October 27, Saturday, October 28, and Sunday, October 29, 2000. The contractor installed bridge caps, braces, and shims, using equipment including a backhoe, electric saws and drills, and hand tools. The work required contractor forces to work eight straight-time hours and six overtime hours on October 27; 15'% Form 1 Award No. 37991
On December 23, 2000, the Organization filed the instant claim on behalf of the Claimants, which the Carrier denied. Having failed to resolve the matter during on-property handling, the parties submitted it to the Board for final and binding resolution.
The Organization contends that the Carrier violated the parties' Agreement by contracting out the work in question. According to the Organization such work is reserved to BMWE-represented employees under Rules 1 and 2 of the parties' Agreement. Moreover, M of W forces have customarily and historically performed such work in the past, according to the Organization. The Organization further argues that the Carrier violated the Agreement by failing to provide notice and engage in a good faith effort to reach an understanding with the Organization regarding the matter, and reduce the incidence of subcontracting, as required by Rule 29 and the December 11, 1981 Letter of Understanding.
The Board finds that the Organization failed to meet its burden of proving that the bridge repair work at issue was reserved to M of W forces. The Organization's argument that Rules 1 and 2 of the parties' Agreement contractually reserve such work to M of W employees is without merit. Rule 1 (Scope) is general in nature, and the Board has found on numerous occasions that in order to prevail in a contracting out claim, under such a general Scope Rule, the Organization must present evidence that BMWE-represented forces have performed the contracted-out work in the past, to the practical exclusion of others. In the instant case, the Organization presented only the statements of two of four Claimants, which establish only that M of W employees have indeed performed bridge repair work in Form I Award No. 37991
the past. The Organization has not provided evidence that such work has been performed by Carrier forces historically and customarily, or to the practical exclusion of others.
Moreover, even assuming arauendo that the Organization had demonstrated the bridge repair work in question to be contractually reserved to Carrier forces, the Organization failed to refute the Carrier's assertion that it is nevertheless permitted to contract out work where the work is of an emergency nature. Rather, the Organization challenges only whether the work at issue in the instant case constituted a legitimate emergency. According to the Organization, the Carrier severely reduced its forces and allowed the bridges in question to deteriorate. The Organization cites arbitral precedent in support of its proposition that FRAreported defects that are the result of such alleged neglect do not constitute an emergency. The Board finds the Organization's argument in this regard to be unpersuasive. The prior Awards cited by the Organization, involving work performed during normal hours rather than on an emergency basis, or involving circumstances where the Carrier failed to identify the actual location of the alleged emergency repairs, are not analogous to the instant case.
The record is clear that a citizen-triggered TRC inspection on October 26, 2000 led to the identification of a serious, hazardous condition that required immediate repair to prevent imminent bridge failure. It is undisputed that repairs were made on an emergency basis, requiring the contractor to work significantly long hours to complete the necessary repairs within a period of three days. The Board finds that a legitimate emergency existed, for which the Carrier was permitted to seek outside help. Furthermore, the Board finds that in the emergency circumstances of this case, there simply was no time for the Carrier to provide the Organization with 15 days' notice and then engage in discussion about the work in an attempt to reach an understanding with the Organization. To require strict compliance with Rule 29 while a six-span bridge is about to fail would be absurd and irresponsible.
The Board finds that the Organization failed to meet its burden of proving that the Carrier violated the parties' Agreement in contracting out the emergency bridge repair work at issue. It is therefore unnecessary for the Board to address the parties' arguments regarding whether the Claimants are proper Claimants in the Form 1 Award No. 37991
instant matter. However, the Board notes that it is a matter of record that Claimant Serna worked with the contractor as a B&B Foreman all three days of the emergency repairs in question, matching them hour for hour according to his timesheet, and therefore performed and was compensated for the very work for which he is seeking compensation herein.
For all of the foregoing reasons, the Board finds that the Organization's claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.