Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42224 Docket No. MW-42012 15-3-NRAB-00003-120357
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 (Rick Franklin) to perform Maintenance of Way work (haul and unload ballast for switch panel installation) at Control Point 653 and Control Point 666 near Junction City, Oregon on the Brooklyn Subdivision on March 4 and 17, 2011 (System File T1152U-505/1553165).
(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 attempt to reach an understanding and 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 D. Chapman and M. Garber shall now each be compensated for twenty-two (22) 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 letter dated January 11, 2011, the Carrier sent a notice to the Organization regarding its intent to contract out "grading services" between Milepost 650.33 and Milepost 677.65 on the Brooklyn Subdivision in Oregon:
"Subject: 15-day notice of our intent to contract the following work:
Location: approximately between Irving (MP 650.33 to Halsey (MP 677.65) on the Brooklyn Subdivision in the state of Oregon
Specific Work: providing all labor, tools, materials and equipment (including but not limited to dozers and motor grader) necessary to provide grading services.
Serving of this 'notice' is not to be construed as an indication that the work described above necessarily falls within the 'scope' of your agreement, nor as an indication that such work is necessarily reserved, as a matter of practice, to those employees represented by the BMWED. . . ."
The Organization responded by letter dated January 19, 2011, and the Parties met in conference about the proposed contracting on January 27, 2011. During the conference, the Carrier indicated its belief that there was a longstanding mixed practice of using contractors to perform grading work that brought the contracting under Rule 52(b) of the Parties' Agreement, which recognizes "prior and existing rights and practices of either party in connection with contracting out." The Carrier also stated that it intended to use contractors on the project on as "as needed" basis throughout the entire year. The Organization objected in its February 15, 2011 letter memorializing the content of the conference.
This particular claim was filed after employees of Rick Franklin Contracting hauled and unloaded ballast at Control Point 653 and Control Point 666 near Junction City, Oregon, within the area designated in the January 11, 2011 notice. Specifically, the claim stated:
"On March 4, 2011, and March 17, 2011, the Carrier utilized Rick Franklin Contractors to perform regular track maintenance on the Brooklyn Subdivision at CP 653 North Irving and CP 666 South Alford near Junction City, Oregon. Rick Franklin Contractors utilized two dump trucks to perform these duties. Rick Franklin Contractors hauled ballast to the work locations from Eugene Yard in order to build grade next to the track. This work was done in preparation for installing switch panels at the said work locations. Gang 8160, who is headquartered in the area, has a dump truck that could have been utilized for the listed work."
The Organization contends that the January 11, 2011 notice did not cover this transaction, that the work properly belongs to the Track Subdepartment pursuant to Rule 9 of the Agreement, and that the Carrier did not establish a right to contract the work out under Rule 52. The Carrier argues that the notice was adequate and that there is a mixed practice of contracting out grading work pursuant to which the work was properly contracted.
There is no doubt that the work performed by the contractor is work historically, customarily and traditionally performed by Track Subdepartment forces, or that its forces are qualified to perform the work at issue and could have performed it. However, if there is a mixed past practice of having both Carrier forces as well as contractors perform certain work, the Carrier may properly contract the work. The Board has addressed the issue of contracting grading work between these Parties before, and there are numerous Awards that recognize the existence of a mixed past practice whereby the Carrier has used its own forces as well as outside contractors to perform grading work,
which bring the work within the "existing rights and practices" language of Rule 52(b). (1)The Board will follow those precedents and deny the substantive contracting out claim.
The Organization also contends that hauling ballast was not included in the original notice, which specified the Carrier's intent to contract out "grading services," with no mention of ballast. The phrase "grading services" reasonably includes preparatory work necessary for grading to be performed. The original claim stated that the contractor "hauled ballast . . . in order to build grade next to the track." (emphasis added) From this, the Board concludes that hauling ballast needed to build grade was encompassed within the notice that referenced "grading services" in general. (2)Accordingly, the Carrier did not violate the Agreement when it used Rick Franklin Contractors to haul and unload ballast at CP 653 and CP 666 on March 4 and March 17, 2011.
The Board next addresses the adequacy of the notice provided by the Carrier. In Third Division Award 32333, the Board articulated the fundamental purpose of the notice requirement: did the notice give the Organization "enough information to take a position on whether the work in issue should be contracted out?" Second, did the parties actually hold a conference to discuss the notice? The latter point is important because a conference is where the Parties can discuss any questions about the notice and the Carrier can clarify and explain any ambiguities. That happened here: during the conference that took place on January 27, 2011, the Carrier explained its intention to use contractors as needed on the project throughout the year and its belief that it was permitted by a mixed past practice to do so.
The January 11, 2011 notice could have been more specific than it was. Under the terms of the December 11, 1981 Berge-Hopkins letter, "advance notices shall identify the work to be contracted and the reasons therefor." However, these requirements need to be interpreted practically. This was not the first notice from the Carrier to the Organization about using contractors to perform grading work; the Parties have an extensive history with this issue. In terms of giving the Organization "enough information to take a position on whether the work at issue should be contracted out," the Board concludes that between the notice and the Parties' conference, the Carrier met its notice obligation under the Agreement. The switch panel replacement project here was one that involved work that would occur over a period of time, not all at once, so the Carrier could not be exact about when specific work would occur at a specific location. In addition, grading work can occur for a variety of other reasons as well. The location of the work was identified within a relatively small area (a little more than 27 miles). The Carrier's forces know in general what each season's work plan is; with the location information, members of Gang No. 8539 (the gang assigned to work in the area) had to have had a reasonable idea of what work they would be doing, and how much of it would involve grading. The written notice did not specify the reasons for the contracting, but the Carrier filled in that information at the conference: a mixed practice under Rule 52(b). Again, contracting out grading work is a topic that the Parties have to face and deal with every year; it is not an entirely new or unique situation that takes the Organization by surprise, where stricter adherence to the requirements of the Berge-Hopkins letter would be warranted. Between them, the written notice and the conference provided the Organization with enough information for it to determine whether it wanted to challenge the proposed contracting out. Under the circumstances, the Board concludes that the notice was adequate, or at least not so inadequate so as to warrant sustaining the claim solely on notice grounds. For the foregoing reasons, the claim must be denied.
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 17th day of November 2015. See, e.g., Third Division Award 37365 (Goldstein), citing "a well-established line of precedent which consistently has supported this Carrier's right to contract out grading and related work pursuant to Rule 52(b)." See, Footnote 1's reference to "grading and related work;" hauling ballast here was "related work."