Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40292
Docket No. MW-39693
10-3-NRAB-00003-060454
(06-3-454)
The Third Division consisted of the regular members and in addition Referee
Brian Clauss when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Chicago
( and North Western Transportation Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Miller the Driller) to perform Maintenance of Way and
Structures Department work (bore and install culverts) at Mile
Posts 31.9 near Lowden, Iowa on the Clinton Subdivision
beginning on July 5, 2005 and continuing, instead of System
Pipe Jacking and Boring Gang employes R. Knipfel, J.
Peterson and A. Scavo (System File 2RM-9669T/1430074
CNW).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with proper advance written
notice of its intent to contract out the above-referenced work or
make a good-faith 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 R. Knipfel, J. Peterson and A.
Scavo shall now `*** each be compensated for forty (40) hours
of straight time and ten (10) hours of overtime for each week
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that the Contractor's employees spent performing
Maintenance of Way work, at the applicable rates of pay."'
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.
The Carrier sent a letter to General Chairman Kent Bushman dated April 5,
2005, which provided:
"This is a 15-day notice of our intent to contract the following work:
Location: Calamus, IA Clinton Sub MP 31.64 MP 32.4
Specific work: providing labor, supervision, grading, subballast
work, culvert work, asphalt work, equipment rental and other items
associated with construction of a universal crossover.
Serving of this `notice' is not to be construed as an indication that
the work described above necessarily falls within the `scope' of your
agreement, nor as an indication that such work is necessarily
reserved, as a matter of practice, to those employees represented by
the BMWE.
Form 1 Award No. 40292
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10-3-NRAB-00003-060454
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In the event that you desire a conference in connection with this
notice, all follow-up contacts should be made with John Steiger in
the Labor Relations Department at phone [number omitted]."
General Chairman Bushman sent a letter to the Carrier on the same date
requesting a conference on the notice of intent to subcontract. He notified the
Carrier that Rule 1(b) Scope provided that the work "may only be contracted
provided that special skills not possessed by the Company's employees . . . special
equipment .... special materials . . . or, time requirements must be met which are
beyond the capabilities of Company forces to meet."
The Organization sent a letter to the Carrier dated April 25, 2005, following
the conference of the instant matter and two other subcontracting notices which
stated, in pertinent part:
"In conference the Brotherhood cited the Carrier's notice of `other
items associated with construction' does not meet the specific
requirements set forth in Rule 1 - Scope of Agreement for such
notices of intent.
The Brotherhood cited that the Carrier does possess all of the
necessary equipment to perform this work . . . . If additional
equipment is needed, such equipment would be readily available for
Carrier to rent or lease. Carrier forces are experienced and
available to perform this work. This is Scope covered work to be
performed by Carrier forces...
No understanding was reached . . . we will progress the claims if
outside forces perform the described work."
The Carrier's May 9, 2005 response confirmed the conferences as follows:
".
. . of the Carrier's notice of its intent to use contract forces to
provide labor, supervision, grading, subballast work, electric work,
and other items associated with construction of a universal
crossover...
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During our conference, you had the position that this `notice' was
improper, inasmuch as your members had an exclusive right to
perform this work on a daily basis.
It was explained to you that work you described is `system' work
and the Company is not adequately equipped to handle the work in
the time requirements are such that it is beyond the capabilities of
Company forces to meet. Under the circumstances, Carrier's use of
a contractor to perform the work is not a violation of that
Agreement, and you were
advised that
the Carrier would proceed
with the contracting of this work."
The Organization sent a claim in the instant matter to the Carrier dated July
20, 2005. In the claim, it stated that the "Claimants are the regularly assigned Pipe
Jacking and Boring Machine Gang employees on this territory." The claim cited
Rules 1, 2, ?, 9, 23, 31 and Appendix 15 in support of the Agreement right for the
employees to perform the cited work. It continued:
"Claimants are maintenance employees working in the area and
they were not instructed to work on the project. None of the work
performed on and around these culverts was emergency work.
Claimants typically perform this very same work and have
historically done so in the past. The Carrier simply had a
Contractor perform this work as a matter of convenience.
Convenience is not a valid reason or exception as listed in Rule 1B to
use a contractor to perform Scope covered work."
The Carrier replied in a letter dated September 8, 2005 and stated, in
pertinent part:
"As a result of my investigation into the merit of your claim I have
determined that the Carrier has not violated Rules 1-B, 2-A . . . of
the Agreement. The Carrier has served notice ....
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Notwithstanding, with the notice in mind, you are also aware the
contractor employees working are fully qualified to perform the
work. The contractor merely assisted our local forces on this
universal crossover work through providing equipment support.
Further, the Carrier has customarily and traditionally utilized
contractor forces to perform the type of work disputed in this case.
Your contention that such work is reserved exclusively to the
employees covered by the BMWE is simply without substance. The
Carrier has resorted to contracting such work out because the
Carrier simply does not own the specialized equipment to
accomplish such work. Thus the Carrier is not adequately equipped
to handle the culvert work for this project. Rule 1 (B) gives the
Carrier certain latitude when it comes to such situations. This Rule
clearly states that if the Carrier does not own the specialized
equipment or [is not] adequately equipped to handle the work then
by agreement between the Carrier and the General Chairman the
Carrier can contact out such work. Moreover, even if such were
reserved to employees of your craft, the fact remains that the
Claimants involved in this case do not possess sufficient ability to
safely and efficiently perform the duties or operate the equipment in
question .
. . . Contrary to your contentions, the Carrier has customarily and
traditionally utilized outside forces to perform the type of work you
describe in this case, and we understand that outside forces have
historically performed such service. Additionally, such work can be
contracted out when the Carrier is not adequately equipped to
accomplish such work by agreement of the Carrier and General
Chairman."
The Organization's October 7, 2005 reply discussed Rule 1 B, and provided,
in relevant part:
"Just by the Carrier serving notice and holding a conference to
contract this work does not give the Carrier the unilateral authority
to contract the work. An agreement must be reached with the
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General Chairman, which no such agreement was reached.
Therefore, the Organization retains the right to file claims as
deemed appropriate."
The Carrier's December 7, 2005 response adopted the earlier Carrier
responses, but included the following:
"In looking at your claim, and the Claimants referenced within who
are UP System BMWE forces, you should be aware that such
contentions that UP System BMWE forces may perform such work,
yet contractor forces on the same project is somehow reserved to
CNW BMWE forces is baseless. The Carrier has maintained a
longstanding practice of utilizing contractor forces to perform
preparatory work for UP System BMWE new construction projects
prior to and subsequent to the former CNW territory coming under
the jurisdiction of the January 1, 1998 UP System Gang Agreement
under Appendix `T.' Under your novel theory, this longstanding
past practice would somehow be applied differently on the former
CNW territory, than on the former UP territory, or the former
WPRR territory, or the former SP Western Lines territory, or the
former D&RGW territory for that matter. There is no dispute that
the complained boring work on the Clinton Subdivision, MP 31.9,
was installed by UP System BMWE forces under the provisions of
Appendix `T.' Therefore, there can be no other conclusion that any
contracting involved in this project would necessarily fall under the
same provisions that would otherwise apply to the collective
bargaining agreement under which the BMWE forces performed the
construction of the new crossover - the UP BMWE Agreement.
There is nothing within the Rule Scope of the Agreement, past
practice or custom that reserves this type of work exclusively to the
Claimants or the BMWE. The burden to show this is on the
Organization and you have failed to do this. The work of boring and
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constructing culverts is not work reserved to the BMWE under the
UP Agreement."
The Organization's response following the conference on the instant matter
stated, in part:
"During the conference, the Organization re-iterated its positions of
this claim as follows:
(1) The CNW/CBA states `all work' to be performed by BMWE
members.
(2) The Carrier and Brotherhood held a conference on work to be
contracted out,, no understanding was reached however the
Carrier fails to admit that just serving a notice does not give
them the right to contract the work.
(3) Claimants are not UP System Gang BMWE forces, they are
CNW Pipe Jacking and Boring Machine Crew, which is a
specialized crew and machine for installing culverts."
The Carrier's February 8, 2006 response stated, in part:
"The Organization's contention that the instant matter is governed
by the CNW/BMWE Agreement is incorrect and misleading. As
expressed on the property, the work in question was covered under
the provisions of the UP/BMWE CBA.
~x
Initially, the work of boring and installing culverts at MP 31.9 was
associated with construction of the universal crossover project on
the Clinton Subdivision, which is work that was appropriately
assigned to the Consolidated System Gang forces. The Consolidated
System Gang works under the scope of the Union Pacific BWWE
Collective Bargaining Agreement, not the CNW/BMWE Agreement.
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Since the work is controlled by the UPBMWE Agreement, Rule 52
is the governing rule and rights and practices flowing from that rule
and agreement are applicable to this claim.
Further, the Carrier explained in its December 7, 2005
correspondence, that the work in question falls under the provisions
of the UP Agreement. Nevertheless, the Carrier submitted proper
notice to your Organization and held conference to re-iterate its
position that the work in question is considered `system' work and
does not fall under the provisions of the CNWBMWE Agreement.
Even though you were served notice of the intent to contract, it was
at the request of the Organization that you be served notice of the
UP Collective Bargaining Agreement work until such time as the
current dispute is resolved."
The Organization maintains that the claim must be granted because the
character of the work is reserved to BMWE-represented forces by the clear
language of the Scope Rule of the C&NW Agreement. For example, Third Division
Award 39942 recognizes that the instant work is typical work of BMWErepresented forces under the Agreement. According to the Organization, the
instant claim is simple - the work is reserved to BMWE-represented forces by the
Agreement, the pipe jacking and boring crew has historically performed the work,
and none of the exceptions of Rule 1(B) were shown by the Carrier. Even if the
System Gang Agreement governed, the work was not done by the System Gang, it
was done by a contractor. Further, the notice of contracting was insufficient
because the Carrier was not involved in any good faith discussions of the
subcontracting.
Under that Agreement, Scope Rule 1(B) provides:
"Employees included within the scope of this Agreement in the
Maintenance of Way and Structure Department shall perform all
work in connection with the construction, maintenance, repair and
dismantling of tracks, structures and other facilities used in the
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operation of the Company in the performance of common Carrier
service on the operating property
By Agreement between the Company and the General Chairman
work as described in the preceding paragraph, which is customarily
performed by employees described herein, may be let to contractors
and be performed by contractor's forces. However, such work may
only be contracted provided that special skills not possessed by the
Company's employees, special equipment not owned by the
Company, or special material available only when applied or
installed through a supplier are required or unless work is such that
the Company is not adequately equipped to handle the work; or
time requirements must be met which are beyond the capabilities of
Company forces to meet."
The Carrier counters that the instant work, installation of a crossover, is
work of a System Gang and that the UP Agreement should govern. System BMWE
forces are not governed by the C&NW Agreement for this work and the claim must
fail. Under the System Agreement, the instant work is customarily done by
contractors. According to the Carrier, the UP BMWE Agreement governs the use
of system gangs. Under that Agreement, the Organization cannot show that the
work was reserved exclusively to BMWE-represented forces.
Similar issues were addressed in Public Law Board No. 7097, Award 8 and
Public Law Board No. 6302, Award 131. In PLB 6302, Award 131, the Carrier
notified the Organization of its intent to contract out certain construction work and
notified the CNW General Chairman. The Carrier subsequently rescinded the
notice after determining that the project was consolidated system gang new
construction work subject to the UP Agreement. The UP General Chairman was
notified. The claim progressed under the CNW Agreement. That Board stated:
"During the handling on the property, the Organization conceded
that the work could be performed under the UP Agreement by
system gangs. However, it maintained that when Carrier chose not
to assign work to system gang employees but instead to contract the
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work out, the work became exclusive to employees under the
C&NW Federation Agreement.
We do not find the Organization's position persuasive. Either the
work was subject to the CNW Federation Agreement or the UP
Agreement. If the work was subject to the UP Agreement, we fail to
see how contracting out the work would somehow render it subject
to the CNW Agreement. Whether the contracting out violated the
UP Agreement is not before us as no claim filed under that
Agreement is before us, However, the claim that is before us, which
was filed under the CNW Federation Agreement must be denied."
In PLB 7097, Award 8, the Carrier used outside contractors to perform
Crossing Watchman duties on CNW Federation Agreement property without
notifying the General Chairman. The Organization argued that the Carrier
violated CNW Federation Agreement Rule 1(B) by not giving proper notice of the
contracting at least 15 days in advance. The Carrier defended that the crossing
protection was part of a new track construction project being performed by a UP
BMWE Consolidated System Gang. Under the UP BMWE Agreement, which
governed the Consolidated System Gang project, subcontracting of the work was
allowable. The Board found that the work was part of a Consolidated System Gang
project, that the UP BMWE Agreement was applicable, and that the CNW BMWE
Agreement was inapplicable. Because the Organization could not show that the
crossing work was BMWE work under the UP BMWE Agreement, the claim was
denied. The Board also held that because the Organization could not show any
claim to the disputed work under Rule 1(B) of the CNW BMWE Agreement, there
was no obligation to provide General Chairman Bushman with advance notice.
The Organization reminds the Board that the UP System Gang Agreement
governs employees assigned to the System Gang - and contractors are not
employees. Because the work was done on a property where the CNW Federation
Agreement controls, contracting on System Gang projects must be done pursuant to
the CNW Federation Agreement.
The Board carefully reviewed the evidence and finds the analysis of the above
Awards to be persuasive. As discussed in PLB 7097, Award 8, under Rule 1(B) the
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Organization could show a claim to the disputed work and notice to General
Chairman Bushman was appropriate here. However, that does not end the inquiry.
It is undisputed in the record that the crossover project was a Consolidated
System Gang new construction project. A crossover was being built by the System
Gang and the culvert work was part of that project. PLB 6302, Award 131 and PLB
7097, Award 8 both stand for the proposition that Consolidated System Gang
projects are governed by the UP BMWE Consolidated System Gang Agreement.
The Board agrees that the UP BMWE Agreement governs the instant crossover
project.
In the instant matter, the Organization cannot show how the contracting out
of the cited work as part of that System Gang's new construction project violated
the UP BMWE Agreement. Accordingly, the claim is 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 1st day of March 2010.