Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40583
Docket No. MW-39076
10-3-NRAB-00003-050553
Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Southern
( Pacific Transportation Company [Western Lines])
STATEMENT OF CLAIM:
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces to perform Maintenance of Way and Structures
Department work (install wing walls for culverts) on the
Dunsmuir District, Roseville Service Unit, in the vicinity of
Dunsmuir, California beginning on August 23, 2004 and
continuing, instead of System Bridge Gang No. 8029 employes
R. Dupre, J. Londo, R. Thompson and M. Haugh (Carrier's
File 1409767 SPW).
(2) 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 the provisions of Rule 59 and the
December 11, 1981 Letter of Understanding.
(3) As a consequence of the violation referred to in Parts (1) and/or
(2) above, Claimants R. Dupre, J. Londo, R. Thompson and M.
Form 1 Award No. 40583
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Haugh shall now each `. . . be paid his proportionate share of
all hours worked by the outside contractor from August 23,
2004 and continuing until such time as the violation ceases to
exist, which shall be no less than the six hundred (600) hours
identified herein, at their respective rate 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 instant dispute challenges the action of the Carrier when it used the
services of a contractor to install wing walls for a culvert at Mile Post 318.27 on the
Valley Subdivision. The Carrier served notice of its intent to contract out certain
work on bridges and culverts by letter dated April 2, 2003. The General Chairman
requested a conference on the notice which was conducted on April 23, 2003.
The record in this case is virtually identical to the record we analyzed in
Third Division Award 40582, which challenged the Carrier's use of a different
contractor for culvert installation on the same territory. The work involved was
covered by the very same notice dated April 2, 2003 that the Carrier provided for
the instant dispute.
We carefully reviewed the record and do not find it to be substantively
different from the record that confronted the Board in Award 40582. Except for
some different dates on correspondence and some other minor differences in the
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10-3-NRAB-00003-050553
(05-3-553)
work and the mile post location, the instant record presents no significant
differences from that seen in the previous dispute.
Given the state of the instant record, for the reasons explained in Award
40582, we are compelled to find that the Organization again failed to sustain its
burden to establish scope coverage. Therefore, we must again find that a violation
of the Agreement has not been proven.
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 27th day of August 2010.