Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42197 Docket No. MW-42018 15-3-NRAB-00003-120375

The Third Division consisted of the regular members and in addition Referee Andria S. Knapp 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 (Osmose, Inc.) to perform Maintenance of Way and Structures Department work (repair bridge piers and install bridge shim plates) at BR 282.1 on the North Platte Terminal Yard Subdivision beginning on April 1, 2011 and continuing through April 22, 2011 (System File D-1152U-219/1554904).

(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 or make a goodfaith attempt to reach an understanding concerning said contracting as required by Rule 52 and the December 11, 1981 Letter of Understanding.

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

(2) above, Claimants B. DeRiso, J. Iske, K. Peterson, R. Rodgers and J. Shepard shall now each be compensated for one hundred twenty-three (123) 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.

Beginning on April 1, 2011, Osmose, Inc. began repair work on Bridge 282.1 at the North Platte Terminal Yard. The contractor's forces repaired Piers 7, 8, and 9 by drilling and pinning cracks and epoxy buildup on the pier surfaces and leveled the bridge with shim plates under the grillages. The work continued until April 21, 2011. Also on April 1, 2011, the Carrier sent the Organization a notice about the work, which was received by the Organization on April 4, 2011, after the work had started. The original notice is not in the record before the Board, but based on the Organization's April 26, 2011, letter memorializing the conference that took place on April 13, 2011, it is clear that the notice specified two reasons for the contracting transaction: (1) the work was done under "emergency" conditions - one of the exceptions to Rule 52(a), and (2) (from the Carrier's perspective) the work was done pursuant to Rule 52(b), which recognizes the Carrier's right to contract out work which it has historically contracted out.

Rule 52(a) limits the Carrier's right to contract out work "customarily performed by employes covered under this Agreement." There is no dispute that the bridge work performed by Osmose was work of the sort routinely performed by the Carrier's Bridge & Building forces and covered by Rule 8 of the Parties' Agreement, which brings it within the purview of Rule 52.

But Rule 52(a) also recognizes certain exceptions under which the Carrier has greater latitude to contract out work, one of them being "when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of Company's forces." One oft-quoted definition of an

"emergency" comes from Third Division Award 20527: "an unforeseen combination of circumstances calling for immediate action." When the Carrier wants to invoke one of the exceptions to Rule 52(a) as a defense, it has the burden of proving the exception. The only evidence in the record here regarding an "emergency" was a brief summary opinion from Manager of Bridge Maintenance Art Hasenauer that the work needed to be done on an emergency basis. There is no evidence in the record to support that opinion. Moreover, Hasenauer's statement was rebutted in the record by credible evidence from BMWWE-represented employees, in particular the statement from Claimant Rodney Rogers, detailing his conversation with Hasenauer at about the same time, to the effect that the Parties had known that the bridge needed repair for quite some time. When Rogers suggested that if the bridge were as bad as Hasenauer implied, traffic over it should be slowed or the bridge taken out of service, Hasenauer responded that the bridge "wasn't that bad." Indeed, the weight of the evidence is that the bridge was sorely in need of repair, but its condition was not the result of any "unforeseen combination of circumstances calling for immediate action;" instead, necessary routine maintenance had not been scheduled for some time. That situation is not what the emergency exception to Rule 52(a) was intended to cover. Accordingly, the work could not be contracted out pursuant to the emergency exception cited by the Carrier.

The Carrier also cited Rule 52(b) as a basis for contracting out the work: "Nothing contained in this rule shall affect prior and existing rights and practices of either party in connection with contracting out." However, Rule 52(b) cases are still subject to the notice provision of Rule 52(a) - which requires that notice be served "as soon as practicable and in no event not less than 15 days prior to" the contracting transaction. The instant notice was not sent by the Carrier until April 1 and was not received by the Organization until April 4, 2011, after the work had already commenced. The notice was clearly not served in a timely fashion.

Because the circumstances did not comport with the "emergency" exception and the notice was untimely under Rule 52(b), the Board will sustain the claim. The Claimants are entitled to be paid for the number of hours worked by the contractor.

AWARD

Claim sustained.

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 28th day of October 2015.