Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43729 Docket No. MW-42781 19-3-NRAB-00003-140474

The Third Division consisted of the regular members and in addition Referee Jeanne M. Vonhof 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 allowed and assigned outside forces (Pettiecord Inc.) to perform Maintenance of Way and Structures Department work (grading and repairing roadways) on the Short Line yard and surrounding area on May 20, 21, 22, 23, 24 and 28, 2013 (System File G-1301C-06/1587941 CNW).

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with advance notice of its intent to contract out the above-referenced work or make a good-faith effort 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 T. Tracy, C. Gildea and S. Ginder shall now be compensated " *** for an equal share of eighty (80) straight time man hours and twelve (12) overtime man hours that the contractor's force spent performing their 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 Claimants here have established and hold seniority within various classifications, including as Track - Bridge and Building (B&B) machine operators and truck drivers within the Maintenance of Way and Structures Department on Seniority District T-2.

This is a claim over the Carrier's use of contractors to perform road grading and repair work, using a road grader and dump trucks. The Organization argues that the Carrier has contracted out work which is reserved to Maintenance of Way employees under Rule 1 of the Agreement. Rule 1B states in relevant part,

"RULE 1 - SCOPE

B. Employees included within the scope of this Agreement in the Maintenance of Way and Structures Department shall perform all work in connection with the construction, maintenance, repair and dismantling of tracks, structures and other facilities used in the operation of the Company in the performance of common Carrier service on the operating property…

By agreement between the Company and the General Chairman, work as described in the preceding paragraph, which is customarily performed by employees described here, may be let to contractors and be performed by contractor'sforces. However,suchworkmay only becontractedprovided that special skills not possessed by the Company's employees, special equipment not owned by the Company, or special material available only when applied or installed through supplier, are required; or unless work is such that the Company is not adequately equipped to handle the work; or time requirement must be met which are beyond the capabilities of Company forces to meet.

In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the Brotherhood in writing as fair in advance of the date of the contracting transaction as is practicable "and in any event not less than fifteen (15) days prior thereto, except in 'emergency time requirements' cases. If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the Company shall promptly meet with him for that purpose. The Company and the Brotherhood representatives shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached, the Company may nevertheless proceed with said contracting and the Brotherhood may file and progress claims in connection therewith."

The Organization also cites the Berge-Hopkins letter, regarding the contracting out of work. The letter remains in the Agreement at Appendix 15.

The work at issue here falls within the scope of "all work in connection with the construction, maintenance, repair…of tracks, structures and other facilities used in the operation of the Company in the performance of common Carrier service on the operating property." It is therefore covered by the scope rule. In addition, the Organization argues that the grading/repair of roads along the right of way has customarily, historically and traditionally been performed by Maintenance of Way employees.

The Carrier provided notice dated October 10, 2012, stating its intent to contract out work providing equipment and materials "necessary to replace with new, repair & maintain asphalt, concrete, pavement, and all other roadways" within the Twin Cities Service Unit, from November 1, 2012 thru December 31, 2013. The Carrier's notice stated its intent to contract out equipment and operators for road repair projects. The parties met in conference over the notice. The work in question falls within the terms of this notice with regard to the type of work, location and dates and this Board has issued Awards in which similar notices were found to be sufficient. See Third Division Awards 40810, 40812.

The Carrier contends that it was not adequately equipped to perform the work in question. In support of its position the Carrier provided a statement from the Manager of Track Maintenance stating, "we do not have the equipment used in the claim or have direct access to the machines that were used to do the work." The Organization argues that the Carrier owns both dump trucks and road graders, and that Carrier forces have historically operated equipment identical in nature to the equipment use by the outside forces here to perform the claimed work. The Carrier disputes that it owns this equipment at every location or even in every district.

The record is devoid of any probative evidence to refute the Manager's statement or to support the Organization's general assertion that other equipment was available. In Third Division Award 41168, Referee Sherwood Malamud ruled, "The Organization bears the burden of proof to establish each element of its claim. (Third Division Award 31930)." Further, in Third Division Award 26257, Referee Suntrup stated,

"As moving party in the instant dispute the burden of proof lies with the Organization to provide substantial evidence that the claim be sustained… Assertions by the Organization are no substitute for proof according to substantial evidence criteria. (Third Division Award 25575). Substantial evidence has been defined as such 'relevant evidence as a reasonable mind might accept as supporting a conclusion.'"

The Board concludes, therefore, that the Carrier has established on this record that it was not adequately equipped to perform the work in issue. The Organization has failed to meet its burden to establish that the equipment used to performthis work or comparable equipment was reasonably available to perform this work. The Organization has failed to meet its burden to establish that the Carrier violated the Agreement by contracting out this work, and therefore the claim must be denied.

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.