Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42078 Docket No. MW-42194 15-3-NRAB-00003-130146

The Third Division consisted of the regular members and in addition Referee Margo R. Newman when award was rendered.

(Brotherhood of Maintenance of Way Employes Division - ( IBT Rail Conference

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces (Restoration Services) to perform Maintenance of Way weed and brush cutting duties on the right of way near and around Mile Post 5.75 in Portland, Oregon, on September 28 and 29, 2011 (System File T-1152U-533/1562999).

(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 the aforesaid work and when it failed to make a good-faith effort to reach an understanding or to reduce the incidence of contracting out scope covered work and increase the use of its Maintenance of Way forces as required by Rule 52 and the December 11, 1981 National Letter of Agreement.

(3) As a consequence of the violations referred to in Parts (1) and/or

(2) above, Claimants M. Hallgren, C. Hatch, M. Stovner and D. Jolly shall now each be compensated for twenty (20) hours at their respective straight time rates of pay."

FINDINGS:

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 15-day notice dated May 16, 2011, the Carrier advised the General Chairman of its intention to contract out specific work "on an as needed basis" including to help Carrier forces in the performance of their duties including road crossing repairs, traffic control equipment trans loading, brush cutting/mowing, fence repair installation, dust control (spraying), right-of-way grading, removal of yard and right-of-way debris/materials on the Portland Service Unit, Portland Subdivision, Kenton Line Seattle Subdivision, to include all terminals and main tracks from Portland to Seattle to Wellsberg Junction. The Organization responded by letter dated May 23, 2011 regarding Service Order No. ORT 051611, objecting to the contracting, the vagueness of the notice which fails to include the commencement date and reasons for contracting, requesting specific information to be furnished at a conference to be held prior to any work being assigned to a contractor, asserting that MMWE-represented employees have customarily performed this work, and asking under which Agreement Rule the notice was served. The conference was held on June 7, 2011 pursuant to Rule 52, during which the Carrier advised the Organization that there was a past practice of the Carrier contracting out similar brush cutting and vegetation control work to supplement its forces when needed.

The instant claim was filed on November 7, 2011, and protests the Carrier's use of a contractor to cut weeds and brush from the right-of-way near MP 5.75 in Portland, Oregon, on September 28 and 29, 2011. The claim asserts that Rule 9 reserves the work of right-of-way maintenance including mowing and brush cutting to BMWE-represented employees who have customarily performed such work, and that the Carrier failed to provide evidence that the reason for the contracting fell within one of the exceptions listed in Rule 52(a) permitting such contracting. The claim also alleges that the Carrier's vague and blanket notice did not satisfy its obligations pursuant to Rule 52 and the December 11, 1981 Berge-Hopkins Letter of Understanding (LOU) for prior written advance notice.

In its initial denial on December 23, 2011, the Carrier stated that the Organization failed to show that the work was reserved to BMWE-represented employees by Agreement or customary and historical performance, that the Carrier had a strong mixed practice of contracting brush cutting, mowing and right-of-way cleanup which permits it to subcontract this type of work under the prior and existing rights and practices language of Rule 52(b) - a right recognized by the Board - citing Public Law Board No. 6305, Award 8 and many Third Division Awards including 40756 and 30063, and arguing that the issue of its ability to contract out this type of work is stare decisis. The Carrier included a Manager's statement indicating that this was an "emergency" due to vegetation brushing against rolling stock and posing a risk to train crews, requiring the spraying of chemicals to kill weeds which are regulated by State and Federal law, and which the Claimants are not qualified to apply. It also took issue with the continued applicability of the LOU. Finally, the Carrier contends that the Claimants suffered no monetary loss because they were fully employed on the contracting dates.

During subsequent appeals and correspondence on the property, the Organization stressed the blanket nature of the notice, that this work is reserved to BMWE-represented employees under Rule 9, and provided employee statements confirming its performance. It noted that the Carrier cannot prove a past practice of contracting merely by listing other instances where similar work was allegedly contracted without showing Organization knowledge of such situations. The Organization pointed out that the Carrier failed to support its contention that any of the exceptions listed in Rule 52(a) existed, calling the Manager's statement "selfserving." It maintained that there was a loss of work opportunity and that a monetary remedy was appropriate.

In its subsequent denial, the Carrier made clear its position that proper advance notice was provided, Rule 52(b) prior and existing rights as established by its mixed practice of contracting brush cutting and vegetation control work supported its right to contract this work (providing documents supporting its practice back to the 1960's previously furnished to the Organization in 1995-6) and that stare decisis should be determinative in denying this claim.

The positions of the parties with respect to this claim are identical to those set forth in Third Division Award 42075 and are incorporated herein by reference without repetition. The instant contracting transaction involves the identical notice and conference covering the contracting of brush cutting and vegetation control work on the Portland Service Unit that was considered by the Board in that case. For the reasons set forth in detail therein, we conclude that the Carrier met its Rule 52(a) notice and conference obligations in this case, and that the Organization failed to establish a lack of good faith on the Carrier's part in violation of the LOU. See e.g., Third Division Awards 28654, 28943, 31281, 32534, 33467 and 37854.

A careful review of the record evidence convinces the Board that the rationale set forth in Award 42075 concerning the issue of whether the Carrier violated the Agreement by contracting this brush cutting and vegetation control work also applies in this case, and is adopted herein. While finding scope coverage of this work, which is not a reservation or guarantee of all right-of-way maintenance work to BMWE-represented employees, the Board noted that Rule 52(a) permits the Carrier to contract out such work if one of the four listed exceptions applies special skills or equipment, when the Carrier is not adequately equipped to handle the work, or when emergency time requirements create situations beyond the capacity of its own forces - and Rule 52(b) permits the Carrier to contract out in conformance with its prior rights and practices.

Unlike the situation in Award 42075, we conclude that the Carrier did establish both a Rule 52(a) justification for the contracting in this case - that BMWE- represented employees were not qualified (licensed) to perform the necessary spraying - e.g., specialized skills (see e.g., Third Division Award 29306) as well as its right to contract this brush cutting work on the basis of its prior and existing rights and practices of contracting similar work under Rule 52(b) by establishing a mixed practice of doing so. See e.g., Public Law Board No. 6305, Award 8; Public Law Board No. 7100, Award 12; Third Division Awards 30063, 33646, 37490, 40756, 40759, 40760, 40761 and 40762. We adopt the rationale set forth in Award 42075 for so finding.

Because the Carrier complied with the notice and conferencing requirements of Rule 52(a), and established its prior and existing right to contract brush cutting and mowing work under Rule 52(b), as well as an exception to Rule 52(a) as justification for the protested work, we find that the Organization failed to meet its burden of proving a violation of the Agreement.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 19th day of March 2015.