Form
NATIONAL, RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39942
Docket No. MW-40723
09-3-NRAB-00003-080585
Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
PARTIES TO DISPUTE: (
STATEMENT OF CLAIM:
(Brotherhood of Maintenance o_ Way Employer Division
( IBT Rail Conference
(Union Pacific Railroad Company (former Chicago and
( North Western Transportation Company)
"Claim o_ the System Committee o_ the Brotherhood that:
(I) The Agreement was violated when the Carrier assigned outside
forces (Andersen Trenching & Excavation) to perform
Maintenance o_ Way and Structures Department work
(demolish/dismantle Section Crew Building) at Mile Post 2.3 on
the Clinton Subdivision on April 2,3,4,5,6,9,10,11,12 and 13,
2007 (System File S-0?OIC-359114?8623 CNW).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper written notice of its
intent to contract out the above-referenced work or make a good_aith attempt to reach an understanding concerning such
contracting as required by Rule 1(b).
(3) As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants E. Ray, W. Dewald and C. Jones shall now
each be compensated for eighty (80) hours at their respective
time and one-half rates o_ pay."
FINDINGS:
The Third Division o_ the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 39942
Page 2 Docket No. MW-40723
09-3-NRAB-00003-080585
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.
On the dates set forth in the claim, the Carrier utilized the services of an
outside contractor to demolish a building. Under Rule 1(b) such work is typical
Maintenance of Way work:
"Employes included within the scope of this Agreement in the
Maintenance of Way and Structures Department shall perform all
work in connection with the . . . dismantling of . . . structures and
other facilities used in the operation of the Company . . . ."
Issues of notice and conference requirements aside, in its July 19, 2007 letter,
the Carrier asserted that the contractor was utilized ". . . because the work involved
the removal of asbestos covered metal throughout the building which requires skills
not possessed by the BMWED." Aside from the assertion of a need to use a
contractor because of special skills not possessed by the employees, the stated reason
for using the contractor because of asbestos removal has not been substantiated by
the Carrier in this record. On that basis, the claim has merit. The Claimants shall
therefore be made whole at the applicable contract rate for the lost work
opportunities.
AWARD
Claim sustained in accordance with the Findings.
Form 1 Award No. 39942
Page 3 Docket
No. MW-40723
09-3-NRAB-00003-080585
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
emitted to the tees.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 30th day of September 2009.