Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43777 Docket No. MW-42674 19-3-NRAB-00003-140379
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: (
(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 utilized outside forces to perform Maintenance of Way and Structures Department work (brush and tree cutting) at various locations on the Altoona Subdivision beginning on April 29, 2013 through May 14, 2013 (System File B-1301C-128/1586631 CNW).
(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with advance written notice of its intenttocontractouttheworkreferencedinPart(1)aboveor 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. Hulke, M. Kuberra, R. Pichler, P. Wilson, A. Klinger and M. Dobson shall now each ' *** be compensated at their respective rates of pay for an equal share of all man/hours, reportedly, seven hundred and eighty (780) man/hours worked by Contractor forces performing the brush cutting on the dates under claim.' (Emphasis in original)."
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 beginning on April 29, 2013, and continuing through May 14, 2013, the Carrier assigned outside forces to perform traditional Maintenance of Way work--tree and brush cutting--between Mile Posts 48 and 129 on the Altoona Subdivision. The Carrier violated Rule 1 of the Agreement when it failed to comply with the advance notice and conferencing provisions of Rule 1; furthermore, it did not offer any contractually acceptable basis for contracting out the scope-covered work.
According to the Carrier, the Organization has failed to establish that the work at issue was scope covered. The work did not involve "work in connection with the construction, maintenance, repair and dismantling of tracks, structures and other facilities. Instead, the work pertained directly to the Carrier's signal system and was done to avoid interference with the integrity of the signal system. Clearing vegetation around signal pole lines has historically been performed by many different groups, including the Carrier's signal forces (represented by BRS), contract employees and others. Given the circumstances of the project, the Carrier and BRS leadership mutually agreed that contract forces were necessary. Because the work was not scope covered, the Carrier did not violate the Agreement when it contracted the work.
The record includes a statement submitted by the Organization from Foreman Roger Wohlk, who witnessed the work being done:
"I was foreman and saw brush and tree cutting under wires and anything touching wires. Name of firm was futuristic innovations LLC from Vidalia, Georgia Cadle McEachin owner. We started at m.p. 92.2 on the Altoona sub on 4-29, crew worked 10 hour days they used a cat 279, like a bob-cat with a brush hog rented attachment on it and what that couldn't get, had three men with chain saws and pole saws getting rest. Worked april 29, 30, may 1, 2, 3, 6, 7, and 8th from mp 92.2 to 108 and mp 118 to mp 129 then may 9th, 10, 11, 13 and 13 from mp 66.7 to mp 48 on the Altoona sub. Only cut directly under wires."
Wohlk's statement supports the Carrier's position that the brush cutting was being done around signal poles: "I saw brush and tree cutti ng under wires and anything touching wires. Only cut directly under wires."
The Organization hasthe burden of establishing that thework itwants to protect is scope covered. It has not met that burden. The evidence is that there is, at best, a mixed practice when it comes to vegetation control around the signal system: BRSrepresented forces often do the work, or, as here, have it contracted out. In cases of a mixed practice, the work is not reserved to Maintenance of Way employees and Rule 1 of the Agreement does not apply. Accordingly, the Carrier did not violate the Agreement when it assigned an outside contractor to perform the brush cutting at issue here.
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 16th day of July 2019.