Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43699 Docket No. MW-42585 19-3-NRAB-00003-140268
The Third Division consisted of the regular members and in addition Referee Andria S. Knapp when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
PARTIES TO DISPUTE: (
(BNSF 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 (L G Pike Construction Company) to perform Maintenance of Way and Structures Department work (sort rail) at the co-plant between Mile Posts 103.300 and 103.8 on the Ravenna Subdivision on January 8, 2013 (System File C-13-C100-180/10-13-0249 BNR).
(2) The Agreement was violated when the Carrier assigned outside forces (L G Pike Construction Company) to perform Maintenance of Way and Structures Department work (sort rail) at the co-plant between Mile Posts 103.300 and 103.8 on the Ravenna Subdivision on January 9 and 10, 2013 (System File C-13-C100-181/10-130253).
(3) The Agreement was further violated when the Carrier failed to provide the General Chairman with advance notice of its intent to contract out the work described in Parts (1) and (2) above or make a good-faith effort to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces as required by Rule 55 and Appendix Y.
(4) As a consequence of the violations referred to in Parts (1) and/or (3) above, Claimants E. Delano, W. Pohlmeier, T. Meyer and M.
Jacobsen shall each '... be paid (8) eight straight time hours and (3) three overtime hours 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.
The Organization contends that the Carrier violated the parties' Agreement when it assigned traditional bargaining unit work--sorting rail--to an outside contractor at the co-plant between Mile Posts 103.300 and 103.800 on the Ravenna Subdivision on January 8-10, 2013, and when it failed to provide proper advance notice as required under Rule 55. The Carrier cites a notice that it sent the Organization, dated March 24, 2011:
"BNSF has been advising by several letters and amendments of its plans to increase capacity with multiple large-scale expansion projects on various Powder River Sub-Divisions. . . .
As information, BNSF plans to contract all work associated with the additional expansion project for approximately 10.05 miles of 2nd Main and setout tracks between MP 86.84 and MP 101.66 on the Ravenna Sub-division. BNSF is not adequately equipped with the necessary specialized equipment ... necessary to perform this volume of work. Moreover, BNSF forces do not possess the necessary specialized dirt work skills for projects of this type and magnitude. . . ."
The Board need go no further than the fact that the notice submitted by the Carrier in response to this Claim does not cover the location where the work allegedly occurred: the Claim is for work performed "at the co-plant between Mile Posts 103.300 and 103.8 on the Ravenna Subdivision." The notice only covers work between Mile Post 86.84 and Mile Post 101.66 on the Ravenna Subdivision--almost two miles away.
Prior Boards have held that where notice is improper or defective, a Claim must be sustained, and accordingly, the Claim is sustained.
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 18th day of June 2019.