Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39273
Docket No. MW-37751
08-3-NRAB-00003-030116
(03-3-116)
The Third Division consisted of the regular members and in addition Referee
Edwin H. Beim when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific 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 (Dan R. Dalton, Inc.) to perform Maintenance of Way
and Structures Department work (bridge straightening) at
Bridge 17.76 on the Kenton Line at Portland, Oregon on 185th
Street on January 3, 4 and 5, 2002, instead of furloughed
Northwestern District Steel Erection employes R. A. Smith, M.
J. Dunn and J. L. Geiss (System File J-0252-55/1308040).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper advance written
notice of its intention to contract out said work and failed to
make a good-faith effort to reduce the incidence of contracting
out scope covered work and increase the use of its Maintenance
of Way forces as required by Rule 52 and the December 11,
1981 Letter of Understanding.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimants R. A. Smith, M. J. Dunn and J. L.
Geiss shall now each `. . . be allowed at his applicable rate a
proportionate share of the total hours, both straight and
overtime hours worked by the contractor doing the work
Form 1 Award No. 39273
Page 2 Docket No. IVIW-37751
08-3-NRAB-00003-030116
(03-3-116)
claimed as compensation for loss of work opportunity suffered
on when the Carrier failed to assign Claimants the work of
straightening Bridge 17.76 on the Kenton Line at Portland,
Oregon located on 185th Street, on January 3, 4 and 5, 2002."'
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.
By notice dated August 6, 2001, the Carrier advised the Organization:
"This is a 15-day notice of our intent to contract the following work:
Location: various locations on Union Pacific Railroad's Western
Region
Specific Work: furnish all labor, supervision, equipment, materials
and supplies to heat and flame straighten structural steel beams."
The work was performed by the contractor on the dates set forth in the claim.
This claim followed.
Form 1 Award No. 39273
Page 3 Docket No. MW-37751
08-3-NRAB-00003-030116
(03-3-116)
First, we reject the Carrier's argument that the Organization must
demonstrate that covered employees performed the disputed work on an exclusive
basis.
". . . (E]xclusivity
is not a necessary element to be demonstrated by the
Organization in contracting claims." See Third Division Award 32862 and Awards
cited therein. See also, Third Division Award 30944:
". . . [T]he
Carrier's argument that the Organization has not shown
that the covered employees performed the work on an `exclusive'
basis does not dispose of the matter. On its face, Article 36 does not
specifically provide that the disputed work must be exclusively
performed by the employees. Rather, Article 36 addresses `work
within the scope of the applicable schedule agreement.' Based upon
the statements of the employees that they have performed this type
work in the past, we are satisfied that the work at issue was `within
the scope' of the Agreement. Third Division Award 29158 . . . ."
Rule 52(a) governs the contracting of work and provides that ". . . work
customarily performed by employes covered under this Agreement may be let to
contractors and be performed by contractors' forces. . . " The type of work in
dispute -bridge repair - is classic maintenance of way work ". . . customarily
performed by employes covered under this Agreement . . . ." See Rule 8 ("The work
of construction, maintenance and repair of . . . bridges . . . shall be performed by
employes in the Bridge and Building Subdepartment."). A showing of exclusive
performance of the work is not required.
Second, we find the Carrier met its notice obligations under Rule 52(a) ("In
the event the Company plans to contract out work because of one of the criteria
described herein, it shall notify the General Chairman of the Organization in
writing as far in advance of the date of the contracting transaction as is practicable
and in any event not less than fifteen (15) days prior thereto, except in `emergency
time requirements' cases."). Notice issued August 6, 2001 and a conference between
the parties was held more than 15 days prior to commencement of the disputed
work by the contractor.
Form 1 Award No. 39273
Page 4 Docket No. MW-37751
08-3-NRAB-00003-030116
(03-3-116)
Third, the Carrier contracted bridge repair work in the past. For similar
reasons discussed in Third Division Awards 28654, 29782, 31170 and 31287, this
claim must be denied.
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 21st day of July 2008.