(I) The Agreement was violated when the Carrier assigned outside forces (Railworks) to perform Maintenance of Way work (track construction) between Mile Posts 629 and 632 at New Milford, Pennsylvania an May 14, 200'7 through June 2, 2007 (Carrier's File 8-00559 DHR).
(3) The Agreement was violated when the Carrier assigned outside forces (Railwarks) to perform Maintenance of Way work (track construction) between Mile Pasts 629 and 632 at New Milford, Pennsylvania on June 24, 2007 through July 28, 2007 (Carrier's File 8-00576).
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(ditching) between Mile Posts 629 and 632 at New Milford, Pennsylvania on July 16, 2007 through July 31, 2007 (Carrier's File 8-00579).
(lI2) hours at their respective straight time rates of pay and for one hundred (100) hours at their respective time and one-half rates of pay, Claimants P. Smith and A. Thomas shall each be compensated for seventy-two (72) hours at their respective straight time rates of pay and for eighty (80) hours of their respective time and one-half rates of pay, Claimants R. Clssig and A. Klemash shall now each be compensated for seventy-two (72) hours at their respective straight time rates of pay and for fifty-six (56) hours at their respective time and one-half rates of pay, Claimant T. Vanderpool shall now be compensated for sixty-four (64) hours at his respective straight time rate of pay and for sixty-four (64) hours at his respective time and one-half rate of pay, Claimant A. Kovaleski shall now be compensated for forty (40) hours at his respective straight time rate of pay and for thirty-two (32) hours at his respective time and one-half rate of pay, Claimant J. Vanderpool shall now be compensated far twenty-four (24) hours at his respective straight time rate of pay and for twelve (12) hours at his respective time and one-half rate of pay, Claimant P. Delamater shall be compensated for eight (8) hours at his respective straight time rate of pay and far sixteen (16) hours at his respective time and one-half rate of pay and Claimant D. Lattimer shall be compensated for twelve (12) hours at his respective time and one-half rate of pay. Form 1 Page 3
(8) As a consequence of the violations referred to in Parts (3) and/or (5) above, Claimant P. Robinson shall now be compensated for one hundred fifty-two (152) hours at his respective straight time rate of pay and for one hundred seventy-two (172) hours at his respective time and one-half rate of pay, Claimant J. Hurlburt shall now be compensated for one hundred forty-four (144) hours at his respective straight time rate of pay and one hundred sixty-eight (168) hours at his respective time and one-half rate of pay, Claimant S. Bologansky shall now be compensated for one hundred thirty-six (136) hours at his respective straight time rate of pay and one hundred fifty-two (152) hours at his respective time
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Page 4compensated for one hundred twelve (112) hours at his respective straight time rate of pay and one hundred forty (140) hours at his respective time and one-half rate of pay, Claimants P. Smith, P. Delamater and D. Lattimer shall each be compensated for one hundred twelve (112) hours at their respective straight time rates
(9) As a consequence of the violations referred to in Parts (4) and/or (5) above, Claimants F. Howatch, R. Penzone and G. Hobbs shall now each be compensated for eight-eight (88) hours at their respective straight time rates of pay and for ninety-two (92) hours at their respective time and one-half rates of pay."
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.
This proceeding addresses five claims filed between June 8 and August 2, 2007. The claims and appeals and responses thereto were timely processed, each separately, in the usual manner during on-property exchanges including up to the highest designated officer of the Carrier. The claims involve the same contractor working the same project at the same location and involve similar issues and arguments. The parties consolidated the claims for the purpose of Board adjudication.
The consolidated claims, hereinafter referred to as the claim, covers the period of May 14 through July 31, 2007. The Organization asserts that the Carrier's use of outside forces for track construction and ditching between Mile Posts 629 and 632 at New Milford, Pennsylvania, violates the controlling Rules for the claim - Rule 1 (Preamble) Rule 3 (Vacancies and New Positions) Rule 4 (Seniority) Rule 11 (Overtime) Rule 28 (Rates of Pay) and Appendix H.
and qualified to perform the claimed work of new track construction. The Carrier did not plan to use its employees as evidenced by its having scheduled the work to commence in mid-April 2007 and by not showing any effort to rent or lease machines or equipment (not in the Carrier's inventory) without operators for its own forces to use. By scheduling the work to commence in mid-April the Carrier did not plan for the use of its own forces. The Organization requested the copies of the contracts with the outside contractors.
On March 22, 2007 the parties met in conference to discuss the claimed work. The Carrier acknowledged that grading and 10,000 feet of track construction is scopecovered work that its own employees have performed in the past, but it identified the reason for contracting as an insufficient number of qualified employees (manpower). The Organization disputed the reason and noted that the Carrier was not engaged in good faith discussion including not itemizing ditching in the notice. According to the Organization, the Carrier had a predetermined intent to contract out as evidenced by its refusal to consider BMWE's request to increase the use of BMWE-represented employees. No understandings were reached and the Organization subsequently filed its claim.
In its claim and appeal, the Organization contends that the notice is deficient because it does not identify reason(s) for contracting out the work in question. Without that information there can be no good-faith discussions at a conference and that precludes the Organization from providing alternatives to contracting out. The Carrier submitted its grant application to the Pennsylvania Department of Transportation in July 2006, but did not notify the Organization until February 2007. Between the date of the application (July 2006) and the work commencing (mid-April 2007) the Carrier could have hired more employees; the Carrier is required to maintain an adequate workforce. Rather than providing advance written notice "as far in advance of the date of the contracting transaction as is practicable" the Carrier delayed and provided the minimum 15-day advance notice, further evidencing its predetermined intent to contract out prior to conference. Although contracts with outside contractors were requested on numerous occasions, they were never disclosed.
In its denial of the claim and appeal, the Carrier asserts that it engaged in goodfaith discussions and had not violated any controlling Rules. During conference, the Carrier informed the Organization that manpower was the reason for contracting, Form 1 Page 7
that is, an insufficient number of BMWE-represented employees. Whenever outsourcing is under consideration the Carrier assesses each project in terms of time constraints, machine and equipment requirements and availability of Carrier forces. The Organization presented no means by which the planned and scheduled work for fully employed employees dedicated to maintenance or track programs could be deployed for this project and complete regular maintenance and track work. In its effort to reduce outsourcing "to the extent practicable" the Carrier hired 82 new employees in 2006 and 2007. The grant from the Pennsylvania Department of Transportation funded part of the project; it was not final until January 5, 2007. Under the terms of the grant, funds would revert if the project was not timely completed and, should that occur, the Carrier would be ineligible to receive funds for one year thereafter. Prudent planning required the Carrier to complete the project sooner rather than later as in delaying the project and risking exposure to the grant expiration date.
The Board's close review of the claim shows that ditching was a matter addressed during the on-property exchanges, with the Organization objecting that it was not mentioned in the notice, but the work was nevertheless performed by contractors, and the Carrier stating that ditching is, essentially, integrally related to and part of grading, so there was no Rules violation for not specifically mentioning "ditching" in the notice.
The Board recognizes that itemizing every detail of work that is subject to contracting may not be feasible or practicable. Nevertheless, the Carrier is the custodian of records in the normal course of its business operations and inherently familiar with the plans and details underlying the contracting notice such that only it knows the integral work to disclose for discussion. In the circumstances presented by this claim, the Organization established a prima facie finding that "ditching" was not set forth in the notice and the Carrier did not submit sufficient argument or evidence to rebut that argument. Thus, Part 4 of the claim as to "ditching" is sustained and the remedy granted as requested by the Organization.
As for that part of the claim focusing on track construction, in on-property Third Division Award 38151 the Board stated: Form 1 Award No. 41420
The Board's conclusions in Award 38151 are equally applicable in this proceeding. There was timely notice and conference with good faith discussion regarding track construction. Apparent from the arguments are the enduring differences between the parties when contracting out is at issue; however, once notice, conference and good faith discussions occur the Carrier can proceed with contracting out scope covered work. Therefore, except as noted hereinabove, the claim is denied.
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.
