Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40376
Docket No. MW-38629
10-3-NRAB-00003-050006
(05-3-6)
The Third Division consisted of the rear members and in addition Referee
Steven M. Bierig when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company (former Southern
( Pacific Transportation Company [Western Lines])
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (I£ewit Construction Company) to perform Maintenance
of Way work (build casts, place concrete, saw cut and related
work) at existing bridge piers at Mile Post 81.39 at Stockton,
California commencing on October 1, 2003 and continuing
through November 14, 2003, instead of Bridge and Building
Sub-department employes J. Mendoza, J. Ruiz, M. Simental, J.
Garcia and M. Puppo (Carrier's File 1385357 SPW).
The Agreement was further violated when the Carrier failed to
provide the General Chairman with a proper advance written
notice of its intent to contract out the work referenced in Part
(1) above or make a good-faith effort to reduce the incidence of
subcontracting and increase the use of Maintenance of Way
forces in accordance with Article IV of the May 17, 1968
National Agreement and the December 11. 1981 Letter of
Understanding.
Form 1 Award No. 40376
Page 2 Docket No. MW-38629
10-3-NRAB-00003-050006
(05-3-6)
(3) As a consequence of the violation referred to in Parts (1) and/or
(2) above, Claimants J. Mendoza, J. Ruiz, M. Simental, J.
Garcia and M. Puppo shall now each `. . . be paid his
proportionate share, at the respective rate of his position, for
the total amount of man hours worked by the Kewit
Construction Company and its employees. Payment shall be in
addition to any compensation they may have already received.
We further request that each named Claimant be paid at the
applicable time and one-half rate of his respective position for
any and all overtime worked by the outside contractor and its
employees. Note: At a minimum, the total amount of straight
time hours worked by the outside contractor and its employees
are two thousand six hundred and forty hours (2,640). With
overtime hours at two thousand and forty hours (2040)."'
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.
Claimants J. Mendoza, J. Ruiz, M. Simental, J. Garcia, and M. Puppo
established and hold seniority in various classes in the Bridge and Building Subdepartment on the Western Seniority District, Sacramento Western Division. At the
time the instant dispute arose, they were regularly assigned to B&B Gang 7517, a
mobile gang working ten-hour workdays, Monday through Thursday, with Friday,
Saturday, and Sunday designated as rest days.
Form I
Page 3
Award No. 40376
Docket No. MW-3$629
10-3-NRAB-00003-05006
(05-3-6)
Beginning on October 1 and continuing through November 14, 2003, the
Carrier assigned an outside contractor (Kewit Construction Company) to perform
repair work on the bridge located at Mile Post 81.39 near Stockton, California. The
work consisted of building casts, placing concrete, cutting concrete, drilling holes,
etc., on the existing concrete support piers on the bridge. Eleven employees of the
outside contractor utilized equipment including a front end loader, chipping gun,
drill guns, air compressor and track excavator to accomplish the work. Said forces
worked 12 hours per day, six days per week repairing the bridge support piers. The
contractor's employees worked 2,640 straight time hours and 2,040 overtime hours.
First, the Organization claims that the Carrier did not provide proper notice
to the Organization as required by the Agreement. Second, the Organization claims
that it was improper for the Carrier to contract out the above-mentioned work,
which is reserved to BMWE-represented employees.
According to the Organization, the Carrier had customarily assigned work of
this nature to BMWE-represented employees. The Organization further claims that
this work is consistent with the Scope Rule and the Carrier's Maintenance of Way
employees were fully qualified and capable of performing the designated work.
Therefore the Claimants should have performed said work. The Organization
argues that because the Claimants were denied the opportunity to perform the
work, they should be compensated for the lost work opportunities.
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. First, it contends that it provided proper notice to
the Organization. Second, the Carrier contends that bridge repair work does not
belong to BMWE-represented employees under either the express language of the
Scope Rule or any binding past practice.
Board concludes that the Carrier sent a proper notice to the
Organization of the proposed contracting on September 5, 2003, and that the
Carrier acted appropriately according to the relevant Rule.
Form 1 Award No. 40376
Page 4 Docket No. MW-38629
10-3-NRAB-00003-050006
(OS-3-6)
With regard to the issue of whether the work in question has been
traditionally and customarily performed by the Organization, we note that Special
Board of Adjustment No. 1016, Award 150, framed the scope issue as follows:
"In disputes of this kind, the threshold question for our analysis is
that of scope coverage. There are generally two means of
establishing scope coverage. The first is by citing language in the
applicable scope rule that reserves the work in dispute to the
Organization represented employees. The second method is
required when the language of the scope rule is general. In that
event, the Organization must shoulder the burden of proof to show
that the employees it represents have customarily, traditionally, and
historically performed the disputed work. It is well settled that
exclusivity of past performance is not required in order to establish
scope coverage vis-a-vis an outside contractor."
In the instant case, the Board carefully reviewed all record evidence
regarding whether the Organization proved that the involved work belongs to
BMWE-represented employees. First, we note that bridge repair work is not
specifically identified in the Scope Rule.
We next turn to whether there is sufficient evidence for the Organization to
have proven that it customarily, traditionally, and historically performed the
disputed work. While the Organization presented some evidence to show that the
work in question belonged to the Organization, that evidence is insufficient for the
Organization to meet its burden of proof. See Public Law Board No. 6537, Award 1
below. See also Third Division Award 37365, as well as Public Law Board No. 4402,
Awards 20 and 28.
In PLB 6537, Award 1, Referee Brent indicated as follows:
"Claimants contend that they were improperly deprived of work
opportunity to perform maintenance of way work operating various
equipment during the construction of a siding extension at Palos,
Alabama between Mile Posts 710.85 and 715.18. . . .
Form 1 Award No. 40376
Page S Docket No. MW-38629
10-3-NRAB-00003-05
(05-3-6)
This work was performed by outside contractor forces . . . .
According to the Organization, `The character of work involved
here is that which has been historically, traditionally, and
customarily performed by the Carrier's Maintenance of Way
employees throughout the Carrier's property . . . .'
The Carrier defended the propriety of its assignment, contending
that the disputed work was not within the exclusive jurisdiction of
the bargaining unit represented by the Organization, and that
similar projects had often been outsourced to contractors in the
past.
~x
. . . the Board's evaluation of the propriety of the assignment of
many aspects of this project to non-bargaining unit forces employed
by outside contractors rests on the Board's determination that
similar work has historically been performed on the Carrier's
property by outside contractors on many occasions, thus precluding
a finding of exclusivity of jurisdiction for the bargaining unit over
the disputed work in the instant case. The Third Division of the
NRAB has held similarly in Cases No. 36280, 36282, and 36283,
among others. The holdings in these cases, especially as they involve
the same parties as the instant case, afford valuable precedent for
the finding herein.
Grading of road bed and compaction of substrate have not been
routinely assigned to bargaining unit employees in all cases.
Moreover, the portion of the work involving laying and installation
of track, work traditionally within the expertise of the bargaining
unit, was assigned to bargaining unit employees."
Based on the record evidence and the above-cited precedent, we cannot find
that the work of bridge repair is either definitively encompassed within the plain
Form 1 Award No. 40376
Page 6 Docket No. MW-38629
10-3-NRAB-00003-050006
(05-3-6)
language of the Scope Rule or that the Organization has been able to prove that
such work has historically and traditionally been performed by members of the
Organization.
Thus, having determined that the notice was proper and that the work was
not within the scope of the Organization, we find that the Organization failed to
meet its burden of proof and the claim is therefore 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 25th day of March 2010.