The Third Division consisted of the regular members and in addition Referee Ann S. Kenis when award was rendered.
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.
January 10, 2002, the Carrier provided the following notice to the Organization:
Upon the request of the General Chairman, a conference was held on January 31, 2002 to discuss the proposed project. By letter on that same date, the General Chairman set forth his understanding of what had transpired at the conference:
According to the Organization, seven employees on the System B&B Steel Bridge Crew assisted six contractor employees on the Vermillion River Bridge Project from April 8 until November 4, 2002. From November 5 through November 21, 2002, however, the Carrier split the B&B crew, sending three employees to begin work on another bridge project at LaCrosse, Wisconsin, while the remaining four employees continued to work on the Vermillion bridge replacement project. On December 2, 2002, one of these four employees was directed to report to work in Milwaukee to perform steel repairs on the Menominee Bridge.
The Organization contends that the contractor brought in additional employees to work on the Vermillion bridge replacement project as a result of the diminution of the B&B Steel Bridge Crew at that location. Accordingly, the Organization filed the instant claim, alleging that the Claimants were denied an opportunity to perform or even to assist in the performance of the bridge replacement work when additional outside forces were assigned to the project and Carrier forces were assigned elsewhere.
The Organization submits that the parties reached an understanding at the January 31, 2002 conference pursuant to the subcontracting notice and the Carrier reneged on that understanding. To the Organization, the Carrier did not act in good faith in accordance with the Scope Rule and Appendix I. The Organization asserts that the work at issue is encompassed within the scope of the Agreement and Form I Award No. 40224
has historically and customarily been performed by BMWE-represented forces. This project was planned well in advance and the work to be performed was not of an emergency nature. In the Organization's view, the Carrier could have utilized BMWE-represented forces to assist in the performance and completion of the project as the Carrier initially committed to do. For these reasons, the claim must be sustained in its entirety.
The Carrier denies that there was any violation of the Agreement. It contends that the subcontracting notice informed the Organization that BMWErepresented employees would be included in the Vermillion bridge replacement project and that is what occurred. The Carrier contends that there was never any agreement to utilize a specific number of BMWE-represented employees or any specific crew. The Carrier further contends that when several of the BMWErepresented employees completed their work on the Vernvllion bridge replacement project, they were moved to another project. The Carrier insists that the contractor did not bring in any additional employees to replace the departing BMWErepresented employees.
In addition, the Carrier takes the position that the bridge replacement work at issue was properly contracted out. The Carrier does not have the equipment, expertise, or manpower to perform an entire project of this magnitude. It has traditionally utilized outside forces to perform this type of work and it properly utilized BMWE-represented employees to assist with track work and flag protection.
Finally, the Carrier argues that the claim presented is excessive. All Claimants were on duty, under pay and suffered no wage losses. No B&B employees were furloughed during the period of the instant claim. The Organization presented a claim for work performed by contractor employees which its members have never performed and are not qualified to perform. For all these reasons, the claim must be denied in full.
The Board carefully reviewed the voluminous record and the lengthy arguments presented by the parties. As an initial matter, we observe that the burden was on the Organization to establish that the Carrier violated the Form 1 Award No. 40224
Agreement. We find that the Organization has not shouldered its burden in the instant case.
The language contained in the Note to Rule 1, the Scope Rule sets forth the notice and conferencing requirements with regard to the contracting out of work within the scope of the Agreement. When the parties meet in conference, they are required to "make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached the Carrier may nevertheless proceed with said contracting . . . " subject to the Organization's right to protest by filing a claim. Appendix I reaffirms the parties' good faith obligations in subcontracting cases.
In Third Division Award 37476, the Board sustained a subcontracting claim after the Carrier reneged on a commitment to utilize BMWE-represented employees and instead contracted out the disputed work to outside forces. The Board concluded that the Carrier breached its good faith obligations under the Agreement.
The instant case is factually distinguishable, notwithstanding the Organization's arguments to the contrary. There are conflicting assertions on this record as to whether the January 31, 2002 conference yielded an agreement concerning the work to be performed by the Carrier's forces. Ultimately, we must conclude that the Organization did not establish that there was a commitment on the part of the Carrier to maintain a full B&B crew or a specific number of Carrier employees for the duration of the project.
This was a large and complex project. The evidence shows that there is, at best, a mixed or shared practice whereby outside contractors and Carrier forces have traditionally performed similar bridge replacement work in the past. The Carrier provided notice to the Organization of its intent to subcontract and it entered into good faith discussions concerning the use of BMWE-represented forces on the project. The Carrier utilized a B&B crew to assist. No BMWE-represented employees were furloughed. The Board is not convinced that the Carrier was required under the Agreement to do more than it did in this case. Form 1 Award No. 40224
Having failed to prove a violation of the Agreement, 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.