Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38948
Docket No. MW-38267
08-3-NRAB-00003-040195
(04-3-195)
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Texas Mexican Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces to perform Maintenance off Way and Structures
Department work (install bridge ties, caps, piling and related
bridge maintenance work) on bridges between Mile Posts 21.0
and 24, Mile Posts 74.00 and 74.52, Mile Posts 108.00 and
108.19 and Mile Post 109.00 beginning August 19, 2003 and
continuing (System File EPTM-03-I 13/259).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper notice of its intent
to contract out the work in question and failed to exert a goodfaith effort to increase the use of Maintenance of Way forces
and reduce the incidence of employing outside forces pursuant
to Rule 29 and the December II, 1981 Letter of Agreement.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimant L. Serna shall now be compensated
for seventy-two (72) hours' pay at his respective straight time
rate of pay and twenty-seven (27) hours' pay at his respective
time and one-half rate of pay for the hours expended by the
outside forces in the performance of the aforesaid work for the
Form 1 Award No. 38948
Page 2 Docket No. MW-38267
08-3-NRAB-00003-040195
(04-3-195)
period beginning August 19 through 29, 2003 and he shall be
compensated at his applicable rate of pay for the all hours
expended by the outside forces beginning August 30, 2003 and
continuing."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and ail 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.
By notice dated April 23, 2003, the Carrier advised the Organization:
"Please accept this letter as Carrier's advance notice of the need to
sub-contract extensive rehabilitation work on the mainline between
Laredo and Robstown TX., which will entail the following:
1. Relay of 15 curves involving over 17000 track feet of rail.
2. Relay of over 20,000 track feet of rail at the sidings of
Killam, Hebbronville, Benavides and Matthews.
3. Replacement of 12 mainline siding turnouts and 25
switches.
4. Rehabilitation of 47 road crossings.
5. Upgrade of 5 bridges.
6. Replacement of over 100,000 ties.
Form 1 Award No. 38948
Page 3 Docket No. MW-38267
08-3-NRAB-00003-040195
(04-3-195)
Bids are being accepted from sub-contractors and it is anticipated
the work will begin within the next 30 to 45 days."
By letter dated April 29, 2003, the Carrier further detailed the work it
intended to contract out.
Conference was held between the parties on May 8, 2003 and agreement was
not reached on the parties' differences concerning the contracting out of the work.
This claim followed.
The case is governed by Rule 29 of the parties' Agreement:
"CONTRACTING OUT
When work coming under the Scope Rule of the Maintenance of
Way agreement is found to be of such nature that it cannot be
performed by the regular forces of the respective sub-departments,
the General Chairman will be notified in writing at least fifteen (15)
days in advance of any transaction for contracting out of such work.
The carrier and organization representatives shall make a good faith
attempt to reach an understanding on the contracting out of the
work to be performed. In event no satisfactory agreement or
understanding is reached, this rule will not affect the existing rights
of either party in connection with the contracting of work and does
not change, alter or modify any provisions of the Scope Rule or any
rules of the applicable agreement in the handling of such matters."
The Carrier's notice and conference obligations were met under Rule 29.
Notice was given to the Organization by the Carrier's letters dated April 23 and 29
and conference was held on May 8, 2003. The claim states the work commenced
August 19, 2003. We find the Carrier's letters sufficiently and timely put the
Organization on notice of the scope and specifics of the work the Carrier intended to
contract out as required by Rule 29.
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Page 4 Docket No. MW-38267
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(04-3-195)
This was obviously a major project. The Carrier asserted in its April 12,
2004 letter on the property that "[tlhe BMWE work force of Carrier is more than
sufficient for its size and this Carrier cannot in any manner justify more employees
and equipment expenses for special and/or unforeseen work projects." Upon our
review of the record as a whole, we find that the Organization has not shown as
Rule 29 requires that the Carrier's position that the work ". . . cannot be performed
by the regular forces of the respective sub-departments . . :' is erroneous or that the
Carrier acted in other than good faith as alleged by the Organization.
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 29th day of February 2008.