Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43730 Docket No. MW-42785 19-3-NRAB-00003-140480

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 Carrier violated the Agreement when it assigned outside forces (Holland Welders) to perform Maintenance of Way Track Subdepartment work (prepare and make rail welds) at locations near and around Mile Post 68.75 on the Mankato Subdivision on June 7, 2013 (System File B-1301C-145/1589282 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 work described in Part (1) above and failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the use of its Maintenance of Way forces 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 S. Pettis and J. Popp shall each ' … be compensated for an equal share of sixteen (16) man/hours worked by contractor Holland on all dates cited earlier in the claim, 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.

As set forth above, this claim was initiated on behalf of the Claimants, who have established and retain seniority in various classifications within the Maintenance of Way and Structures Department, Track Subdepartment. On June 7, 2013 they were regularly assigned to welder positions, and regularly performed the work of preparing and making rail welds.

This is a claim for 16 hours of welding work performed by outside contractors (Holland Welders) on the Mankato Subdivision. The Organization argues that the work in issue here, preparing and welding rails and rail joints, is Maintenance of Way Track Subdepartment work under Rule 1, the Scope Rule. In addition, the Organization argues that this is typical Maintenance of Way work in connection with maintaining and repairing the rails. The Organization argues that the Carrier did not issue proper notice of its intent to contract out this work, and has failed to prove that the work falls under any exception to Rule 1 that would permit contracting the work to outside forces.

The Carrier does not dispute that the work was performed by outside forces, but argues that the work is not scope-covered work. The disputed welding work was performed using specialized equipment, a flash-butt Holland welding machine, which is not owned by the Carrier. The Carrier argues that its employees have never operated electric flash-butt welding equipment, and do not have the training to operate the machinery. According to the Carrier, because this is not scope-covered work, there was no obligation to provide advance notice of contracting out of the work. In the alternative, the Carrier argues that it did provide notice and has established that this was specialized equipment not owned by the Company, an exception that permits contracting out work covered by the Scope Rule.

Rule 1, 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 Carrier contends that the calibration and operation of the flash-butt Holland Welding machines is outside of the scope of the Agreement. There is no dispute that the Carrier does not own flash-butt welding machines. The record is devoid of evidence demonstrating that Carrier forces have ever operated flash-butt welding machines, or that they have the knowledge or training to do so. The calibration and monitoring of this sophisticated electronic automated welding machine, and its push-button operation, have not been among the work duties of the Carrier's Welder classifications. The Organization has not proven on this record that the work of monitoring or operating flash-butt welding machines is scope-covered work. Because the work of operating flash-butt welding machines does not fall under the scope rule, the Carrier was not required to provide advance notice of the contracting out of this work.

The Organization also claims that the Agreement was violated when contractor employees were used to perform some of the work necessary to prepare and finish the rail welds, in correlation with the flash-butt welding. The Carrier acknowledges that the practice has been and remains that local Carrier forces perform all the preparatory and finishing work necessary when contractor forces are brought in to perform flash-butt welding. The Organization has proven that this preparatory and finishing work remains scope-covered work, when outside forces perform flash-butt welding.

The Carrier argued that the Organization failed to identify this work within the initial claim. The Organization identified the work in the claim as "prepare and make rail welds." The work disputed by the Organization falls within the language of the claim.

The Organization has presented a statement from Claimant Pettis stating that the Holland welder performed certain preparatory and finishing work on the rails in relation to the flash-butt welding work at issue here. The Carrier denies that the preparatory or finishing work was performed by contractor forces and presented a statement from a Manager stating that the preparatory and finishing work was performed by Carrier forces.

The Board concludes that the conflicting statements provided by the parties create an irreconcilable dispute in the facts in relation to the issue of whether contractor forces performed the preparatory and finishing work of the Carrier's forces. When the Board is faced with an irreconcilable dispute over materials facts relating to a determinative issue in a claim, the Board must conclude that the Organization has not met its burden to prove its claim. See Third Division Award 37204, (Neutral Margo R. Newman), where this Board ruled,

"A careful review of the record convinces the Board that this case does present an irreconcilable dispute of material fact with respect to the determinative issue of whether the Claimant was offered the opportunity to work the disputed overtime. We have no way of measuring the validity of the Claimant's statement or that of Supervisor Davis. As repeatedly noted by the Board in such circumstances, we function as an appellate body and have no way of resolving evidentiary conflicts or factual disputes. See Third Division Awards 28790 and 21436. Because this dispute of fact prevents the Organization from sustaining its burden of proving that the Carrier violated the Agreement as alleged, the claim must be dismissed. See Third Division Award 36406."

The Organization has not met its burden to prove that scope-covered work was performed by contractor forces, 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.