The Third Division consisted of the regular members and in addition Referee Patrick Halter when award was rendered.
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.
On June 9, 2005, the Organization disputed the notice and requested a conference. During conference it submitted that the work could be performed with Carrier equipment and personnel. The Carrier contended that its employees were fully employed and it had no. qualified Operator for the off-track crane inasmuch as the Carrier does not own one. The Carrier subsequently denied the Organization's appeal.
On August 2, 2005, a claim was filed wherein the Organization asserted a contract operator on an off-track crane began driving sheet piling, which is work customarily performed by Structures Department personnel; this work did not involve special skills, equipment or materials. The Carrier disputed equipment availability, special equipment, full employment, volume of work and availability of employees, so it denied the claim. The claim is properly before the Board.
disputed work performed is reserved to BMWE-represented employees. A Bridge and Building crew assisted the off-track crane operator driving sheet piling to stabilize the sub-grade and track structure at several locations on the Orin Subdivision. This fundamental and routine maintenance work (Group 1 Machine Operator to drive sheet piling to create retaining walls to stabilize the sub-grade for new switches) performed by outside forces is encompassed with the scope of the Agreement and customarily performed by Carrier forces.
Because the work is within the scope of the Agreement covering BMWErepresented employees, they have a contractual right to be assigned to and perform that work before the Carrier resorts to employ forces from outside the Agreement. Prior to contracting this work, the Carrier issued written notice and conferenced with the Organization, but there was no resolution.
Two criteria under the Note to Rule 55 and Appendix Y are the need for special equipment and special skills. The Carrier does not own an off-track crane of the type used for this project. BMWE-represented employees have operated small capacity rubber tired and crawler cranes (which are retired from service) and high capacity locomotive cranes on the track, but no one has been trained and is qualifed to operate a high capacity (200 - 300 ton range) hydraulic boomed crane as was used
for this work. OSHA regulations are different from when the Carrier operated crawler cranes; it now requires that a crane operator be qualified in the specific type of crane operated and demonstrate proficiency in handling a heavy suspended load in close proximity of the work performed. Renting such a crane with the operator was necessary for the service recovery and expansion effort on the Orin Subdivision.
The Note to Rule 55 and Appendix Y enable and authorize the Carrier to assign this work to outside forces yet remain compliant with the Agreement when special equipment and special skills are required. The Carrier met those criteria and the Organization failed to prove otherwise. The claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.