Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43703 Docket No. MW-42590 19-3-NRAB-00003-140277

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 (McKinzie and subcontractors) to perform Maintenance of Way and Structures work (install a replacement liner) at B1 West Dike, North side, Cushman in Lincoln, Nebraska on December 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 2012 and continuing (System File C-13-C100-205/10-13-0264 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 its 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. Worster, S. Zimbleman, W. Timmerman, L. Hayes, J. Waggoner and J. Rickers shall each be compensated one hundred twenty (120) hours at their applicable straight time rates of pay and fifteen (15) hours at their respective overtime rates 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 Organization contends that the Carrier violated the parties' Agreement when it used an outside contractor to install a replacement liner in a fueling platform track pan at the Hobson Yard in Lincoln, Nebraska. The Carrier responds that even if the work at issue was covered by Rule 55--which BNSF disputes--it fell under the exceptions to the Rule.

The Note to Rule 55 establishes the parties' rights and obligations regarding contracting out of bargaining unit work. If the disputed work is work "customarily performed" by bargaining unit employees, the Carrier may only contract out the work under certain exceptional circumstances:

"[S]uch work may only be contracted provided that special skills not possessed by the Company's employes, special equipment not owned by the Company, or special material available only when applied or installed through supplier, are required; or when work is such that the Company is not adequately equipped to handle the work, or when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company's forces."

In addition, if the Carrier plans to contract out work on one of these bases, the Note requires the Carrier to notify the Organization "as far in advance of the date on the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto, except in 'emergency time requirements' cases." The Organization

may request a conference to discuss possibilities for avoiding the proposed contracting out, pursuant to the Note and Appendix Y.

In this case, the Carrier provided notice by letter dated March 3, 2011:

"As information, BNSF plans to contract for all work associated with the improvements to the fueling platform track pan system located at Hobson Yard (B1 West) in Lincoln, NE. BNSF does not possess the necessary specialized welding x-ray equipment or pipe fusion machine. Moreover, BNSF forces do not possess all of the necessary skills required for the operation of the weld x-ray equipment, pipe fusion machine, or for the dirt work. Also, there is a possibility of fuel-impacted soil and any work performed in this area has to be done in accordance with OSHA 29 CFR 1910.120. . . ." (Emphasis added.)

Even if bargaining unit employees had performed the work in the past, even if MoW employees had the skill to operate any specialized equipment, and even if no specialized equipment was ultimately used, the "specialized skills" exception to Rule 55 still applies in this case. The Carrier's Maintenance of Way forces do not have the specialized training to deal with "fuel-impacted soil" pursuant to OSHA regulations. The Organization contends that the Carrier has not met its burden of proof to establish that OSHA regulations apply. But the Carrier raised the OSHA regulations in its initial notice, and there is no evidence in the record that the Organization challenged their applicability during the on-property handling of this claim. The notice gave the Organization the appropriate citation to the Code of Federal Regulations, which it could research, and the topic was one that the parties could discuss during the conference on the Claim. The Board concludes that the work in dispute falls under the "specialized skills" exception to Rule 55, and the Carrier did not violate the Agreement when it contracted the work out.

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 June 2019.