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:



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.




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:



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:






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:



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.