Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42553 Docket No. MW-42242 17-3-NRAB-00003-130228

The Third Division consisted of the regular members and in addition Referee Roger K. MacDougall when award was rendered.

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

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company (former Chicago ( and North Western Transportation Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier utilized outside forces (ARS Corp.) to perform Maintenance of Way and Structures Department work (tree and brush cutting) between Mile Posts 63 and 87 on the Harvard Subdivision beginning on January 23, 2012 and continuing through February 17, 2012 (System File B-1201C-106/1565743 CNW).

(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 work referenced in Part (1) above or make a good-faith attempt to reach an understanding concerning such contracting as required by Rule 1 and Appendix '15'.

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

(2) above, Claimants D. Kopp, J. Edges, K. Mielke, L. Heitman,

H. Sauer, H. Mathe and D. Klingseisen shall now each "*** be compensated at their respective rates of pay for an equal share of all hours, reportedly to date, one thousand six hundred and forty (1640) man/ hours, worked by Contractor forces performing the brush cutting on the dates under claim.'"

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 is a case involving contracting out of brushcutting. The Organization says the contracting out was improperly done.

The Rules in question are as follows:

"RULE 1 - SCOPE

•**

B. Employees included within the scope of this Agreement in the Maintenance of Way and Structures Department shall perform all work in connection with the construction, maintenance, repair and dismantling of tracks, structures and other facilities used in the operation of the Company in the performance of common Carrier service on the operating property . . . .

RULE 2- SUBDEPARTMENTS

The following Subdepartments are within the Maintenance of Way and Structures Department.

A. Bridge and Building Subdepartment B. Track Subdepartment

C. Roadway Equipment Repair Subdepartment A. B&B Subdepartment

1. B&B & Painter Foreman

2. B&B & Painter Assistant Foreman 3. Scale Inspectors 4. Truck Drivers

5. B&B Carpenters 6. Masons

7. B&B Helpers

8. Bridge Tenders 9. Bridge Flagmen 10. Cooks

11. Machine Operators

12. Assistant Machine Operators

•**

RULE 3 - CLASSIFICATION OF WORK

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B. An employee directing the work of employees and reporting to officials of the Company shall be classified as a Foreman.

E. An employee assigned to construction, repair, maintenance or dismantling of buildings, bridges or other structures including the building of concrete forms, etc., shall be classified as a B&B Carpenter.

•**

I. An employee qualified and assigned to the operation and servicing of machines used in the performance of Maintenance of Way and Structures Department work shall be classified as a Machine Operator.

•**

K. An employee assigned to operate a truck used in the performance of Maintenance of Way and Structures Department work shall be classified as a Truck Driver.

•**

D. Rights accruing to employees under their seniority entitle them to consideration for positions in accordance with their relative length of service with the Company.

RULE 5 - SENIORITY DISTRICTS

Seniority Districts are identified as follows: B&B Track

B-2 T-2

B-3 T-3

B-4 T-4

B-7 T-7

B-8 T-8

B-9 T-9

RULE 7 - SENIORITY LIMITS

A. Separate seniority in the B&B and Track Subdepartments shall be established in the following classes: B&B Subdepartment

1. B&B Foreman (including Classes 2&3)

2. Assistant B&B Foremen (including Assistant Foremen Truck Drivers)

3. Truck Drivers*

4. B&B Carpenters (including Masons and LeadCarpenters)*

5. B&B Helpers, Bridge Tenders andCooks

•**

TRACK - B&B MACHINES

H. The following machines, not listed as Class A, B, or C machines, are used in common in the B&B and Track Subdepartments, i.e., at times on Track work, at other times on B&B work. In order to permit the assigned operator to stay with the machine, regardless of the Subdepartment in which working, a separate seniority roster shall be established for operators of such machines. Where there are no qualified bidders holding seniority on such roster for such machine operator positions, vacancies shall be bulletined to both B&B and Track Subdepartment employes who shall be eligible to bid for such positions. Assignment to the vacancy will be based upon the oldest retained seniority date.

Cranes of less than 20-ton maximum lifting capacity Pettibone Speed Swing Earth Drill Blacktop Roller Car Top Unloader Crawler Crane Crawler Loaders and Dozers Boom Truck Motor Grader Tie Cranes Rubber Tired Tractor Trencher Portable Air Compressor (Rail-Mounted) W-64 Derrick Car Lo-Boy Backhoe Idaho Norland Snow Blower Articulated Front End Loader Hydro-Scopic Excavator Unimog Fuel Service Truck Truck With Plows and Salt Spreaders Skid Loaders with Attachments Sheep's Foot"

In addition, the Organization says that the "Berge" letter continues to apply to this day. The Carrier disagrees.

The Organization says that when the Carrier plans to contract out work contained within the Scope of the Agreement, i.e., work which is customarily performed by Carrier forces, it is required to give the General Chairman written notice of its plans to contract out the work as far in advance of the date of the contracting transaction as practicable and in any event not less than 15 days prior thereto and if the General Chairman or his representative requests a meeting to discuss matters relating to the intended contracting transaction, a representative of the Carrier shall promptly meet with him for that purpose, as required by Rule 1 (b), Paragraph 3 and the interpretation and amendments thereto embodied in the December 11, 1981 Letter of Agreement. Rule l (b), Paragraph 3 and the December 11, 1981 Letter of Agreement, in pertinent part, read:

"In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the Brotherhood in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto, except in 'emergency time requirements' cases. If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the Company shall promptly meet with him for that purpose. The Company and the Brotherhood representatives shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached, the Company may nevertheless proceed with said contracting and the Brotherhood may file and progress claims in connection therewith."

"Dear Mr. Berge:

December 11, 1981

The carriers assure you that they will assert good-faith efforts to reduce the incidence of subcontracting and increase the use of their maintenance of way forces to the extent practicable, including the procurement of rental equipment and operation thereof by carrier employees.

The parties jointly reaffirm the intent of Article IV of the May 17, 1968 Agreement that advance notice requirements be strictly adhered to and encourage the parties locally to take advantage of the good faith discussions provided for to reconcile any differences. In the interests of improving communications between the parties on subcontracting, the advance notices shall identify the work to be contracted and the reasons therefor . . . ."

The Organization first says that the Carrier failed to provide proper notice of its intent to contract out this work. The Notice in question was dated December 27, 2011. This letter specifies that the work will be ". . . to provide fully fueled, operated and maintained tractors, mowers and other equipment necessary to control vegetation" on the Chicago Service Unit, throughout 2012.

While this Notice is not as specific as some which this Board has upheld, it is clearly better than others that this Board has rejected. On balance, this Board finds that the Notice had sufficient detail and was thus in compliance with the Agreement.

This case turns on the type of specialized knowledge and skill required for this work. The Organization points out that brushcutting is something they do all of the time. The Carrier, however, says that this particular brushcutting was special. It involved climbing trees over 20 feet above the track and out over cliffs and bodies of water. This, they say, requires specialized skills and equipment.

Because of this specialized skill requirement, this Board finds that the Carrier has shown that this situation falls within the exceptions to contracting out in the Agreement.

As a result, the Organization has failed to meet its burden of proof.

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 6^thday of March 2017.