Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43583 Docket No. MW-42415 19-3-NRAB-00003-180470 NRAB-00003-140013

The Third Division consisted of the regular members and in addition Referee Jacalyn J. Zimmerman 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 assigned outside forces (Hulcher, Inc.) to perform Maintenance of Way and Structures Department work (operate vacuum truck to clean up right of way) in the North Yard and the West Yard at Mason City, Iowa on July 17, 2012 (System File B-1201C-125/1575251 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 above-referenced work 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 J. Clausen and T. Woodfill shall now '*** each be compensated for an equal share of thirty (30) man/hours, that the contractor's forces spent performing their Agreement covered work, at the applicable 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.

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 January 17, 2011, the Carrier sent the Organization a Notice of its intent to contract out work as follows:

"Location:Various locations on the Railroad's Twin cities

Service Unit

Specific Work:Providing fully operated, fueled and maintained

equipment to assist Railroad forces in performing work on an as-needed basis."

NRAB-00003-140013

On July 17, 2012, the Carrier utilized a contractor, Hulcher, Inc., to operate a Vacuum Truck in the Carrier's Mason City, Iowa West and North Yards. The contractor used a foreman and a machine operator, each of whom worked 15 hours to complete the work. The Organization maintained that this work is exclusively reserved to its members and the Carrier failed to comply with the contracting out provisions of the parties' Agreement. Moreover, the Organization contends that the Carrier maintains in its inventory the type of equipment utilized by the contractor to perform this work, and Claimants were available and qualified to perform the work had it been assigned to them.

The Board is persuaded that the work involved is traditionally performed by the Organization'smembers. TheOrganization contends thatit hasmet itsburdenofproof in this matter because the Carrier has not satisfied the notice requirements set forth in Appendix 15 to the parties' Agreement.

Weagree. ThespecificlanguageoftheNoticeatissue,whichstatesthatitcovered "various locations on the Railroad's Twin cities Service Unit," and intended to have the contract provide "fully operated, fueled and maintained equipment to assist Railroad forces in performing work on an as-needed basis" has been rejected in numerous Third Division awards, including Nos. 42542, 42548, 42551, 42552, 42554, and 42556.

As in those Awards, the instant Notice does not even identify thework to be done, and, as the Board noted in the cited Awards, it provided no time frame during which the work would be performed. If accepted by the Board, it would be tantamount to allowing the Carrier to contract out all of the Organization members' work at any time inthefuture. Itisvirtuallynonoticeatall. WeagreewiththereasoninginthoseAwards that this cannot be what the parties intended in the subcontracting provisions of their Agreement.

We therefore conclude that the Organization has met its burden of proof. As we find the cited Awards controlling, we sustain the claim.

AWARD

Claim sustained.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 27th day of March 2019.