Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43007 Docket No. MW-43575 18-3-NRAB-00003-160327

The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.

(Brotherhood of Maintenance of Way Employes Division PARTIES TO DISPUTE: ( IBT Rail Conference

(

(Delaware 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 (bridge repair and related duties) at a bridge at Mile Post 592.52 on the Freight subdivision beginning on October 28, 2013 and continuing through November 27, 2013 (Carrier's File 8-00982 DHR).

(2) The Agreement was further violated when the Carrier failed to comply with the advance notification and conference provisions in connection with the Carrier's intent to contract out the aforesaid work or to make any good-faith efforts 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 T. Grow and D. Welch shall now each be compensated for a total of one hundred eighty-four (184) hours at their respective straight time rates of pay and for forty-six (46) hours at their respective overtime rates of pay; Claimant B. Cooper shall now be compensated for a total of one hundred four (104) hours at his respective straight time rate of pay and for twenty-six (26) hours at his respective overtime rate of pay; Claimants J. Williams and K. Moore shall now each be compensated for a total of seventy-two (72) hours at their respective straight time rates of pay and for eighteen (18) hours at their respective overtime rates of

pay; and Claimant V. Miner, III shall now be compensated for a total of sixty-four (64) hours at his respective straight time rate of pay and for sixteen (16) hours at his respective overtime rate 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 October 28, 2013 and continuing through November 27, 2013, the Carrier assigned outside forces to perform specified duties related to bridge repair at Harpursville High Bridge located at Mile Post 592.52 on the Freight Subdivision. The Organization protested that the work was scope covered and outsourcing it was in violation of the parties' collective bargaining Agreement.

The Carrier provided evidence that it gave the Organization notice of the work. In its view, the magnitude and complexity of this project was beyond the skills available within its workforce. More specifically, the Carrier maintained that the work involved jacking up the bridge to maintain it, which was an unusual repair involving specialized skills. The contractor was required to engineer, design and built custom framing to support the bridge work of the old and new span. The work was unlike that previously done by Carrier employees, including bridge work at MP 592.52 because of the need for more complex scaffolding and support structures as well as the requirement of sophisticated equipment.

The Carrier argued it does not have the capacity to train its employees in the details of this complex project. Further, it noted the contractor's work was warrantied and the contractor assumed all liability for required daily inspection of the work, any damages to private or public property, the General Public and any environmental issues. It concludes there was no violation of its Agreement with the Organization.

The Organization contends that the work of bridge maintenance is clearly covered under the agreement between the parties. In its view, the work involved was work that the Carrier's forces had previously performed at various locations throughout the Carrier's system. BMWED employes have performed plate, bearing and stiffener replacement as well as abutment and pier repair, the Organization contends. In its view this experience meant they were well qualified to perform the work in question. It concludes that the Carrier has attempted to outsource work which is contractually required to be assigned to BMWED employes. In its view, the terms of Rule 1.1 are clear and fully applicable in this case.

As required by mutual agreement, the Carrier provided notice to the Organization of its intent to contract out the work in question and the parties had an opportunity to conference about it. This demonstrates good faith, an important aspect of the parties' negotiated approach to subcontracting.

The Board is persuaded that the work involved here was closely related to historical work of the Carrier's employes, but differentiated in important ways. Though bridge repair is generally encompassed by the scope provision, the work here involved was atypical and specialized. Jacking up a bridge with design and construction of unusual and necessary scaffolding was not the type of work that had historically been performed by the Carrier's employes. This work required specialized equipment, precise and unique engineering as well as specific training and experience. The engineering and design of the bridge support system during repair was uncommon, and the Board is not persuaded that the Carrier's employees were adequately trained, experienced or skilled to reliably accomplish the tasks involved. It follows that the Carrier within its rights to contract out the work, and unit employes were not wrongfully denied the opportunity to perform work they had historically done.

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 29th day of March 2018.