Form I
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40858
Docket No. MW-41306
11-3-NRAB-00003-100170
The Third Division consisted of the regular members and in addition Referee
Edwin I-I. Benn when award was rendered.
PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
(Brotherhood of Maintenance of Way Employes Division -
( HIT Rail Conference
(Union Pacific Railroad Company
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Mike Simons Contracting) to perform Maintenance of
Way and Structures Department work (removing snow and
cleaning right of way) between Mile Posts 182.1 and 185.3 on
the Portland Subdivision of the Oregon Division beginning on
December 17, 2008 and continuing through January 4, 2009
(System File C-0952U-156/1516606).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper advance written
notice of its intent to contract out said work or make a goodfaith attempt to reach an understanding concerning said
contracting as required by Rule 52(a).
As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimants R. Robinson, D. Dacus, C. Fletcher
and J. Minica shall now each be compensated for one hundred
and eighty (180) hours at their respective and
of pay."
applicable rates
Form I
Page 2
FINDINGS:
Award No. 40858
Docket No. MW-41306
11-3-NRAB-00003-100170
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.
By letter dated August 12, 2008, the Carrier advised the Organization's
General Chairman as follows:
"Subject: 15-day notice of our intent to contract the following work:
Location: Various points across the Union Pacific System
Specific Work: provide all labor tools, equipment, and materials
necessary to provide snow removal services at various locations
through the 200$-2009 snow season."
A conference on the notice was held on August 28, 2008, without reaching an
understanding.
On the dates set forth in the claim, the Carrier subcontracted the disputed
snow removal work. This claim followed.
For reasons set forth in
Division Award 40857, the Carrier's notice in
this case (which was the same notice as in Award 40857 supra) was sufficient under
Rule 52.
Similarly, for reasons set forth in Award 40$57, supra and Awards cited
therein ". . . in contracting disputes, the Organization does not have to demonstrate
performance of work by scope covered employees on an exclusive basis."
Form 1 Award No. 40858
Page 3 Docket No. MW-41306
11-3-NRAB-00003-100170
As in Award 40857, supra, the Carrier argues that this is a "mixed practice"
case in that snow removal has been contracted out in the past; notice was given;
conference was held; and that it could therefore contract the work under Rule 52.
The record in this case does not support that argument.
In Award 40857, supra, the Board found that "[t]he Carrier is correct that in
what it refers to as `mixed practice' cases, the Board found that contracting of scope
covered work is permissible under Rule 52 where the Carrier has contracted that
work in the past." Nevertheless, the Board sustained the claim because, although
the Carrier has contracted out snow removal work in emergency situations, the
Carrier did not demonstrate a "mixed practice" in that case of contracting out snow
removal work in non-emergency situations:
"In emergency cases, the contracting provisions of Rule 52 do not
apply and the Carrier - by Rule and precedent - has great latitude
with respect to use of contractors. See Rule 52(c) (`[n]othing
contained in this rule requires that notices be given, conferences be
held or agreement reached with the General Chairman regarding
the use of contractors or use of other than maintenance of way
employees in the performance of work in emergencies such as
wrecks, washouts, fires, earthquakes, landslides and similar
disaster.'). See also, Third Division Award 20527 (`. . . [I)t is well
established that the Carrier, in an emergency, has broader latitude
in assigning work than under normal circumstances; in an
emergency Carrier may assign such employees as its judgment
indicates are required and it is not compelled to follow normal
Agreement procedures.').
This was not an emergency case. The Carrier has not contended
that snow conditions were such that an emergency existed requiring
it to utilize outside forces. Instead, the Carrier has treated this snow
removal dispute like other non-emergency contracting out disputes
under Rule 52. The Carrier defended by arguing that it gave notice,
conference was held and the contracting of the work in dispute was
permissible because of a `mixed practice.' No `mixed practice' of
contracting out snow removal in non-emergency situations has been
shown in this case. Without more of a showing of a `mixed practice,'
we cannot find one exists in this case."
Form 1 Award No. 40858
Page 4 Docket No. MW-41306
11-3-NRAB-00003-100170
Here, in support of its "mixed practice" position concerning contracting of
snow removal work, in its June 19, 2009, letter on the property, the Carrier refers to
a statement from Manager of Track Maintenance R. Case wherein ". . . he states
this work has been performed by others for many years." Case's statement
attached to the Carrier's letter asserts "[t]his work [snow removal] has been done
for many years by others not the BMWE." (Emphasis added)
Who are the "others" who previously performed the snow removal work? If
snow removal work was previously performed by Carrier forces other than BMWErepresented employees, then the Carrier's exclusivity arguments would come into
play, because although the Organization does not have to show exclusivity of
performance of work in contracting disputes (Award 40857, supra), in inter-craft
disputes, the Organization does have the burden to demonstrate that scope covered
employees have performed the work on an exclusive basis. See Third Division
Award 36762:
"This is a dispute between employee groups concerning the
assignment of snow removal work. Absent a clear reservation by
Rule of that work only to the Claimant's class of employees, the
Organization is required to demonstrate that such snow removal
work has been historically and exclusively performed by that class of
employees on a system-wide basis. See Public Law Board No. 3460,
Award 65:
`The Board is constrained to note that the Organization is
taking the position that not only is snow removal work
reserved exclusively for employees on the Maintenance of
Way category but also within that group, exclusively
reserved to Track subdepartment only by historical
systemwide exclusivity. Such evidence, however, is not in the
record. Petitioner has failed to indicate that the work of
snow removal belongs exclusively to any class of employees,
much less the Track subdepartment group. Further, there is
no rule support for the position that the work in question
belongs to the Claimant herein . . . .'
Here, there is no Rule that clearly reserves snow removal work only
to the Claimant's class of employees. Further, there is no evidence
Form 1
Page 5
Award No. 40858
Docket No. MW-41306
11-3-NRAB-00003-100170
that the Claimant's class of employees has historically and
exclusively performed this work on a system-wide basis . . . ."
But the Board cannot tell if the "others" referred to in Manager of Track
Maintenance Case's statement who have previously performed snow removal work
are "other" employee groups working for the Carrier or "other" outside
contractors. In this case, the Carrier needed to show that the "others" were
contractors who performed the snow removal work in non-emergency situations.
The Carrier did not do so. Based on the record, we, therefore, cannot make the
"mixed practice" finding the Carrier seeks.
Finally, as in Award 40857, supra, we find no evidence in this record for the
factors in Rule 52 which would permit contracting:
"In addition to the lack of a showing of a `mixed practice' or an
emergency, facts supporting the other conditions in Rule 52 to allow
contracting do not exist in this record (`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 supplier, are required; or when work is such that
the Company is not adequately equipped to handle the work; or
when emergency time requirements exist which present
undertakings not contemplated by the Agreement and beyond the
capacity of the Company's forces')."
We shall therefore sustain the claim. As a remedy, the Claimants shall be
made whole for the lost work opportunities. See Award 40857, supra, and Awards
cited.
AWARD
Claim sustained.
Form I
Page 6
Award No. 40858
Docket No. MW-41306
1I-3-NRAB-00003-100170
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 7th day of February 2011.