Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40863
Docket No. MW-41345
11-3-NRAB-00003-100125
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company
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 (R C Welding) to perform Maintenance of Way work
(operate crane to remove/replace in track frog) on the South
Morrill Subdivision at Mile Post 149 on November 6, 2008 and
at Mile Post 139 on November 18, 2008 (System File D-0852U230/1513701).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper advance written
notice of its intention to contract out said work and failed to
make a good-faith attempt to reach an understanding
concerning said contracting as required by
December 11, 1981 Letter of Understanding.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimant D. Roelle shall now be compensated
for sixteen (16) hours at his respective straight time rate of
pay."
52 and the
Form 1
Page 2
FINDINGS:
evidence,
Award No. 40863
Docket No. MW-41345
11-3-NRAB-00003-100125
The Third Division of the Adjustment Board, upon the whole record and all the
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
involved herein.
Adjustment Board has jurisdiction over the dispute
Parties to said dispute were given due notice of hearing thereon.
By letter dated April 21, 200$, the Carrier advised the Organization's
General Chairman as follows:
"THIS IS TO ADVISE OF THE CARRIER'S INTENT TO
CONTRACT TIDE FOLLOWING WORK:
PLACE: At various locations on the North Platte Service Unit.
SPECIFIC WORK: Providing any and all fully operated, fueled and
maintained and or non operated equipment necessary to assist with
program work, emergency work, and routine maintenance
commencing May 5, 200$ to December 31, 2008."
A conference on the notice was held on May 13, 2008, without reaching an
understanding.
On November 6, 2008, a contractor's employee utilized a truck crane to lift a
frog from a track and set in a new frog on the South Morrill Subdivision. On
November 18, 2008, the same contractor's employee performed similar duties at a
different location on the South Morrill Subdivision. This claim followed.
Form I
Page 3
Award No. 40863
Docket No. MW-41345
11-3-NRAB-00003-100125
The notice in this matter was the same notice found sufficient for purposes of
Rule 52 in Third Division Award 40861.
For reasons set forth in Third Division Award 40857, and Awards cited
therein and contrary to the Carrier's argument, ". . . in contracting disputes, the
Organization does not have to demonstrate performance of work by scope-covered
employees on an exclusive basis."
respect to the Carrier's "mixed practice" assertions and its argument
that in those cases it can contract out scope-covered work, see Award 40861, supra:
"With respect to the type of work performed in this case, prior
awards have upheld the Carrier's ability to contract out similar
work. See Third Division Awards 33645 and 37644."
In this case (and contrary to the facts in Award 40861, supra) the contractor
did not utilize the Carrier's equipment with its employee which caused the Board to
sustain that claim as being inconsistent with the notice. In this case, the contractor
provided the equipment and the operator. The statement of Manager of Track
Maintenance B. Mumm, which was attached to the Carrier's May 8, 2009, letter
stated:
"Used RC Crane to set frog in because did not have my own
equipment to safely set in frog. The frog weighs 12,000 pounds. Did
not have a piece of equipment that could make that lift an its own."
Based on the above, the claim lacks merit and shall be denied.
AWARD
Claim denied.
Form 1 Award No. 40863
Page 4 Docket No. MW-41345
11-3-NRAB-00003-100125
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 7th day of February 2011.