Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43386 Docket No. MW-42688 19-3-NRAB-00003-140283

The Third Division consisted of the regular members and in addition Referee I. B. Helburn when the award was rendered.

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

PARTIES TO DISPUTE: (

(BNSF Railway Company (Former Burlington Northern (Railroad)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces LG Pike Construction Company) to perform Maintenance of Way and Structures work (load, haul and unload track retarder and switch panels) at Carling in the Hobson Yard, Lincoln, Nebraska on October 10, 11 and 12, 2012 (System File C-13-C100-103/10-13-0137 BNR).

(2) The Agreement was further violated when the Carrier failed to provide the General Chairman with 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 55 and Appendix Y.

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

(2) above, Claimants D. Danielson, S. Hrenchir, M. Halpin, D. Ficke and S. Thomas shall Each now '…be paid twenty -four (24) hours straight time and six (6) hours at time and a half at the appropriate rate of pay as settlement of this 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 claim arises from the Carrier's decision to contract out the work of loading, hauling and unloading track retarder and switch panels on October 10-12, 2012 to LG Pike Construction Company, allegedly without advance notice to the Organization of intent to subcontract. The Claimants held seniority within their respective classifications within the Maintenance of Way Department and were regularly assigned at times relevant. The claim was timely presented, progressed on the property without resolution and is properly before the Board.

The Organization asserts that Rules 1, 2, 5 and the Note to Rule 55 established the disputed work as that of the Carrier's Maintenance of Way and Structures Department. ⁽¹⁾The evidence shows that Maintenance of Way employees with appropriate seniority in the appropriate classes historically have done this fundamental maintenance work which is reserved to the bargaining unit. The Organization does not have to establish the disputed work as exclusively that of the affected the Claimants, but only that historically the work has been done by Maintenance of Way employees. There is no mutually recognized past practice that would allow the work to be contracted out.

The Carrier failed to provide the proper minimum 15 day notice required by the Note to Rule 55 and Appendix Y or to act in good faith to reduce subcontracting. Both provisions specify the only conditions under which work may be contracted out, but even when those conditions may exist, the Carrier must still inform the Organization of the intent to contract out and discuss this if asked. The Carrier issued an October 20, 2011 notice of intent to contract out work and a conference followed on November 2, 2011. The Organization alleges that neither in the notice nor in conference, both almost a year in advance of the actual work, was the disputed work mentioned. The Carrier had sufficient time to schedule the work with Maintenance of Way forces and no special equipment was involved. The Carrier's reliance on a BMWE/Northern Pacific Letter of agreement is misplaced. While there are similarities to Appendix Y, there are important differences so that the Board should give no weight to the document.

The Organization further contends that the Carrier has not presented a valid defense to the instant claims. Moreover, because the Carrier did not provide the required notice of intent to contract out, the Board should reject "the Carrier's defenses outright because of the Carrier's failure to comply with the advance notice and meeting provisions of the Agreement". The Organization has presented a prima facie claim that shifts the burden of proof to the Carrier to show that the claim is not valid. However, the disputed work, detailed by the Organization during the processing of the claim, obviously was contracted out.

The argument that there were scheduling difficulties is a red herring. Dates were scheduled for the outside forces and could have been scheduled for Maintenance of Way employees as well. The Carrier contention based on the Claimants' unavailability is not persuasive as the Carrier must adequately staff and train the Maintenance of Way work force. The Carrier simply failed to make an effort to assign the installation work to the Claimants. Nor was an effort made to bulletin new positions. The Carrier did not acquire sufficient numbers of new employees to perform the regular work of the bargaining unit. There is an obligation to increase the work force before contracting out.

The remedy set forth in the claim is appropriate as it would make the Claimants whole for lost work opportunities and would protect the integrity of the Agreement. That the Claimants were fully employed on the days in question should not deprive them of remedies. They were available for the work had the Carrier elected to assign them to the disputed work, even if leave had been approved, as the work could have been rescheduled. It is settled that the Organization gets to name the Claimants when a claim is filed. Two earlier claims do not establish the Organization's agreement that Claimants are not entitled to compensation if they were on vacation status.

For reasons summarized below, the Carrier asserts that the claim should be denied. ⁽²⁾The Organization has not met its burden of proof by providing "two 'form' statements with very generic similar language found in many employee 'statements' used by the Organization" to show that the disputed work was that of its employees. Nor has the Organization proved that the disputed work was reserved to its members. Rule 1 Scope is a general rule that does not in and of itself reserve work to Maintenance of Way forces. The Organization has not shown that it has done the disputed work "system-wide, to the exclusion of others". At best there has been a mixed practice, which allows the work to be contracted out. Moreover, as this is a dispute over facts, the "Board must either dismiss the case or rule against to moving party". Rules cited by the Organization do not reserve the work. The Carrier has not violated Appendix Y, which does not restrict contracting out, but "is a statement of the parties' intention to set up a vehicle to discuss reduction in contracting out". Appendix Y is not applicable unless the Organization shows that disputed work is reserved to Maintenance of Way employees. Appendix Y does not apply on the property and is not derived from Article IV of the May 17, 1968 National Agreement.

Assuming, arguendo, that the claim is meritorious, no damages are due because the Claimants were fully employed at times relevant. The Organization has not submitted proof of damages and the negotiated agreement has no provisions allowing for liquidated or punitive damages. Moreover, Claimants unavailable for work at times relevant are not to receive damages. In a previous case, the Organization "removed a claim date from an employee for the sole reason that he was on vacation and therefore was unavailable for work".

It is well settled that the Organization must prove all elements of its claim. See Third Division Awards 24975, 26219 and 36208. The statement signed by Claimants Hrencir and Halpin and Local Chairman Sailors that "We are witness to this violation and the dates, hours and information in the claim are true" makes the necessary prima facie showing that outside forces performed the disputed work. Moreover, the Carrier not only has not denied that such work was performed, but also has provided justification for the use of outside forces.

In addition to making a prima facie case that outside forces were used, the Organization also must provide evidence that the disputed work has been customarily, traditionally and historically--as opposed to exclusively, systemwide--performed by Maintenance of Membership forces. See on-property Third Division Award 40565. The above-noted statement includes the following: "This work is done by Maintenance of Way employees and we should have been given the opportunity to do the work." "Is done by" is not the same as probative evidence that would establish "has been customarily, traditionally and historically done by." That statement is simply an assertion. The Board acknowledges General Chairwoman Moody-Gilbert's statement in her November 4, 2011 letter to Khoury Farrar, BNSF Labor Relations, confirming the contracting conference, that "all of this work had been accomplished by several Maintenance of Way employees in the very same area in 1994, 1995, 1996 and 1997." But, the letter goes on to mention dirt work. It is not specific as to the work set forth in the claim, which was not filed until almost a year later. Statements that Maintenance of Way employees have customarily done the disputed work remain unsupported.

Because the Organization has failed to prove that the disputed work customarily has been performed by Maintenance of Way employees prior to October 10-12, 2012, the claim fails.

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 18th day of January 2019.

1. All Organization contentions refer to support from previous Third Division and Public Law Board awards, many of them on-property awards. The support will not be noted in the summary of the Organization's contentions, but will be referenced as appropriate in the analysis that follows.

2. Carrier references to NRAB and PLB decisions, both on-property and offproperty will not be referenced in this summary but will be referenced as appropriate in the analysis that follows.