Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42411 Docket No. MW-41752 16-3-NRAB-00003-110375

The Third Division consisted of the regular members and in addition Referee Patrick Halter when award was rendered.

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

PARTIES TO DISPUTE: (

(CP Rail System (former Delaware and Hudson ( Railway Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces to perform Maintenance of Way work (install a Quonset Hut/Tool House) at Schoharie Junction, New York beginning on December 1, 11, 12, 15, 16, 17, 18 and 19, 2008 (Carrier's File 800711 DHR).

(2) The Agreement was further violated when the Carrier failed to provide a proper advance notice of its intent to contract out the aforesaid work or make a good-faith effort to reduce the incidence of subcontracting and increase the use of Maintenance of Way forces as required by Rule 1 and 'Appendix H'.

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

(2) above, Claimants D. Welch, A. Melville, J. Perry, J. Williams and L. Martin shall now each be compensated for eight (8) hours at their respective straight time rates of pay for each of the cited dates on which the outside forces performed the aforesaid work."

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.

On May 20, 2008, the Carrier issued to the Organization a notice "RE: Contracting Out - Install Quonset Hut at Schoharie Junction" stating as follows:

"Please be advised that the Carrier intends to have a contractor on the property at Schoharie Junction, New York to install a new Quonset Hut.

The Carrier's forces will be utilized elsewhere and will therefore be unavailable during the period of time required to complete the work.

The scope of the work will include:

Excavate site to accommodate the size of the new 32 X 41 prefab steel Building

Prepare site with proper compact gravel to place concrete forms

Pour concrete to suit the new building as per spec Erect building as per plans Install Two 14 X 14 Garage doors Install one man door Install new electrical panels Install new lighting and electrical outlets where required. Connect electrical service to existing Service. Level ground around the construction site

The start date of the work is scheduled to begin on, or about, June 9, 2008."

On May 23, 2008, the Organization informed the Carrier that it was opposed "to contracting out any work that accrues to the Bridge and Building (B&B) and the (M/W) Maintenance of Way Departments." Force employees were available, qualified and have historically and customarily performed this scope-covered work (Rules 1 and 28). The Carrier exerted no effort to schedule the work for the force nor did it identify equipment required and not owned by the Carrier or unavailable by rental arrangement. The Carrier asserts a lack of manpower which shows its failure to maintain adequate manning levels.

The Organization requested the following information and documents:

1. When was this work first considered and planned.

2. Include all internal memos as to the planning of accomplishing this work and as to the planning of the contracting of this scope covered work.

3. What is the estimated man hours that would be needed to do this work.

4. What specific equipment is needed for this work.

5. A copy of the proposal put out for bid to contractors. Including the proposed work to be performed.

6. A list of the contractors contacted to perform this work.

7. A list of the contractors who made a response.

On May 27, 2008, conference convened by telephone. The Carrier's letter to the Organization dated June 25, 2008 confirms the conference and is a response to the Organization's letter dated May 23, 2008. The Carrier states it met the Carrier's burden under Rule 1 with the notice that contains relevant information. Rule 1 does not require the Carrier to detail its process for outsourcing; the contractor determines equipment needed. The reason for outsourcing is not inadequate force (Organization's assertion) but force unavailability as it was assigned elsewhere. The requested information and documents are confidential; disclosure is not required under the collective bargaining agreement.

On February 8, 2009, the Organization filed a claim alleging the Carrier violated Rule 1 and Appendix H, among others, when it used an outside force to install a Quonset Hut at Schoharie Junction in December 2008. This is scopecovered work which the force customarily and historically performs.

On April 8, 2009, the Carrier denied the claim stating it complied with Rule 1 by issuing notice and participating in good-faith discussions during conference. As the Organization presented no viable alternatives, the Carrier proceeded to contract out and the outside force arrived on property on December 1, 2008.

On September 30, 2009, the Organization filed an appeal. Issuance of a notice, by itself, does not satisfy the good-faith requirement. This work is not specialized; the force performs this type of work. The Carrier's failure to disclose requested information and documents shows its disregard of the requirement to engage in good-faith discussion during conference. The exchange of information at conference promotes reaching an understanding on outsourcing and alternatives. The Carrier failed to show where the force was unavailable in June 2008 (scheduled start date) or in December 2008 when the work commenced; the Carrier exerted no effort at any time to schedule the force for this work.

On May 31, 2010, the Carrier denied the appeal by reiterating arguments in its claim denial and providing a copy of the contract to the Organization. The Carrier states no employees were furloughed and it noted the work history of Claimants from June 1, 2008 through December 31, 2008 - "all employees were working on projects, such as the rebuilding of the concrete jacking pads at Binghamton, bridge ties, culverts, to list a few - clearly the Claimants were not available" and "no amount of planning would have led to the conclusion that the work was within the capabilities" of the force as employees were working their normal hours and planned overtime.

On September 20 and 27, 2010, a conference convened by telephone but did not resolve the claim which now is before the Board for a decision.

Having reviewed the record established by the parties during on-property exchanges as well as their submissions filed in support of their respective positions, the Board finds that construction of structures, such as a tool house, is scopecovered work and such work is customarily and historically performed by the force. Contracting-out scope-covered work under Rule 1 requires notice and conference absent an emergency which is not present or proclaimed in this proceeding by the Carrier.

The notice set forth the reason for contracting and an anticipated date for the work to commence e.g., force unavailable to complete work within time frame. The parties met in conference wherein Rule 1.4 states the parties' representatives "shall make a good faith attempt to reach an understanding concerning said contracting transaction[.]" Each party has a mutual obligation to "make a good faith attempt to reach an understanding" on the contracted work.

According to the Organization, good faith in conference is the Carrier's obligation "to show the Organization why it believes the contracting out is necessary so that the parties can engage in discussion and make a good-faith attempt to reach an understanding." In the Carrier's view good faith in conference is the Organization's obligation to present viable alternatives to outsourcing for discussion. Each party's view of good-faith discussion during conference is considered in the context of Appendix H where the parties are committed to reducing the incidence of subcontracting and increasing the use of the force "to the extent practicable." The Board interprets "to the extent practicable" as a case-bycase determination.

In this claim the Board finds that the parties convened conference on May 27, 2008 to discuss the notice dated April 27, 2008. The notice to contract itemized the particulars of the project -

Excavate site to accommodate the size of the new 32 X 41 prefab steel Building

Prepare site with proper compact gravel to place concrete forms. Pour concrete to suit the new building as per spec Erect building as per plans Install Two 14 X 14 Garage doors Install one man door Install new electrical panels Install new lighting and electrical outlets where required. Connect electrical service to existing Service. Level ground around the construction site

The record reflects a wide-ranging discussion during conference. Although the Organization states that the Carrier never disclosed its plan for the tool house prior to conference on May 27, 2008 (thereby showing the Carrier did not engage in good-faith discussion at conference), the notice provides sufficient detail such that the Organization was aware of the structure's dimensions, structure's infrastructure and related work (site preparation) as of April 27, 2008 (date of notice).

The Organization asserts another indicator of the Carrier's lack of good-faith discussion that precludes reaching an understanding during conference is that the Carrier prepared drawings of the structure, dated May 7, 2008, and disclosed them to the outside force but refused to disclose the same information to the Organization. The Organization relies on the plan's drawings referred to in the contract under Schedule C - Scope Details. In this regard, Schedule B - Description of Services, states that the contractor's proposal addresses "Scope" as "attached herewith" in Schedule C and the drawings in Schedule C are dated May 7 but the drawings in Schedule C are not identified as prepared by the Carrier. Inspection of the plan identifies the drawings with the contractor's name.

A third indicator, the Organization asserts, that the Carrier did not meet in conference with good-faith discussion is it failed to disclose the equipment required for this project even though it had the contractor's proposal (dated May 21, 2008) prior to conference. The Carrier states that the contractor determines equipment to be used; the contract states the contractor "shall provide the equipment" without further identifying any equipment to be used on this project.

As noted in on-property Third Division Award 38149, "[w]hile it is clear that the Organization did not agree with the Carrier's position and continued to disagree even after discussions between the Parties, there is no showing that the Carrier acted in other than good faith." Applying this on-property award to the findings in this claim, the Board concludes that the Carrier provided advance written notice to the Organization and, as requested, promptly met in conference where the Organization and the Carrier engaged in a good-faith attempt to reach an understanding on reducing the use of an outside force and increasing the use of the force "to the extent practicable." Rule 1 and Appendix H do not compel the parties to resolve their differences during conference and when that occurs, as here, the dispute has been placed before the Board by the Organization for a final resolution. In the circumstances of this claim, the Carrier's use of an outside force did not violate Rule 1 or Appendix H. Therefore, the 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 31st day of October 2016.