Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42233 Docket No. MW-42093 15-3-NRAB-00003-130009

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 (bridge maintenance/repair and related work) at BR 583.72 on the Laramie Subdivision commencing on April 26, 2011 and continuing through May 27, 2011 (System File D-1152U-221/1556444).

(2) The Agreement was violated when the Carrier assigned additional outside forces (Osmose, Inc.) to perform Maintenance of Way and Structures Department work (remove/replace bridge structure components and related work) at BR 667.37 on the Laramie Subdivision commencing on May 30, 2011 and continuing through June 17, 2011 (System File D-1152U229/1557987).

(3) The Agreement was further violated when the Carrier failed to furnish the General Chairman with a proper advance notice of its intent to contract out the aforesaid work and when it failed to make a good-faith effort to reach an understanding concerning said contracting as required by Rule 52 and the December 11, 1981 National Letter of Agreement.

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

(3) above, Claimants J. Dreher, P. Lavin, S. Schlensker, L. Deherrera, R. Kinkade, M. Wilson and C. Frazier shall now each be compensated for two hundred eighty-eight (288) hours at their respective straight time rates of pay.

(5) As a consequence of the violations referred to in Parts (2) and/or

(3) above, Claimants J. Dreher, P. Lavin, S. Schlensker, L. Deherrera, R. Kinkade and M. Wilson shall now each be compensated for one hundred eighty (180) 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.

This case is a companion case of sorts to Third Division Award 42197, involving similar work performed by the same contractor in the same time frame, but under somewhat different circumstances.

Starting on April 26, 2011, and continuing until late May 2011, Osmose, Inc. made repairs to Bridge 583.72 on the Laramie Subdivision on the Wyoming Division. The repairs were quite similar to those performed by Osmose the month before on Bridge 282.1 in the North Platte Terminal Yard (Award 42197): concrete pinning and epoxy repair, along with miscellaneous steel maintenance and replacement.

In response to the claim that culminated in Award 42197, the Carrier contended that the work was performed pursuant to the emergency exception of Rule 52(a), but it failed to establish that there was a bona fide emergency, and the claim was sustained.

In the instant case, the Carrier contends that Rule 52(a) permitted it to contract the work because it needed to be done on an "emergency" basis. In contrast to Award 42197, there is solid evidence in the record in this case to support the Carrier's position, specifically a statement from Director of Bridge Maintenance T. R. Martindale explaining in detail why contractors were used to repair BR 583.72:

"The conditions at both bridges were a concern and had the potential to fail and take us out of service. During the first inspection, we concluded both bridges needed to be slated for repair. We scheduled work to be performed late in the year. We conducted another review months later and the bridge inspectors inspected BR. 583.72 and reported that the conditions had gotten worse. It was so bad they believed the bridge could immediately fail. This could have caused death, injury and potentially more. This was not some ordinary event. The bridge was moving! While some movement is okay, in this situation, the pier was moving past safety ranges.

After the inspector's report, MBM Chris Johnson looked at the bridge and notified me. Mr. Johnson confirmed we must take immediate action to prevent any harm. We then took corrective action, as we felt necessary, to protect the operations of the Railroad and safety of our employees. Our crews did not have the capabilities to deal with this type of repair in the necessary time frame. We did serve notice because this bridge was slated to be repaired. However, again, after the inspection, we could not wait until late fall as we originally planned. . . ." (emphasis added)

In addition to Martindale's statement, the record includes correspondence between various Carrier personnel discussing the immediate need to repair Bridge 583.72, as one of the worst on the system; Bridge 67.37 was also discussed in emergency terms. The rationale for the emergency is clear: some months before, the work had been scheduled for routine maintenance in the fall of 2011. However, an interim bridge inspection discovered that the bridge had deteriorated beyond what had been expected - to the point where it was moving "past safety ranges." This is a classic example of an "unforeseen combination of circumstances requiring immediate action," to quote Third Division Award 20527, and fits the definition of "emergency time requirements . . . which present undertakings not contemplated by the Agreement and beyond the capacity of Company's forces," to quote the language of Rule 52(a).

The Carrier established that the work needed to be completed on an emergency basis. An emergency is one of the exceptions to Rule 52(a)'s limits on contracting out scope-covered work, and to the normal notice requirements, as well. Accordingly, the instant claim is 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.