Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43810 Docket No. SG-45219 19-3-NRAB-00003-180669

The Third Division consisted of the regular members and in addition Referee George Edward Larney when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(The Belt Railway Company of Chicago

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Belt Railway of Chicago:

Claim on behalf of all Belt Railway Company of Chicago (BRC) employees represented by the Brotherhood of Railroad Signalmen (BRS), for all hours worked by contractors to be divided equally among each Claimant at their respective rates of pay, and $500 for each Claimant, account Carrier violated the current Signalmen's Agreement, particularly the Scope Rule, starting on January 17 and 18, 2017, Carrier permitted contractors to perform Scope covered work of installing, wiring, and testing two generators used exclusively for the Signal System at East End and Hayford Interlockings, in Chicago, Illinois, without negotiating an agreement, thereby causing the Claimant's a loss of work opportunity. Carrier's File No. BRS File 1701-BRC. General Chairman's File No. 17-01-BRC. BRS File Case No. 15888-BELT. NMB Code No. 102"

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.

On January 17 and 18, 2017, without notice or negotiation with the Organization to reach a mutual agreement, Carrier utilized contractor forces to install backup, also known as standby electrical generators at two (2) separate locations, the East End and Hawthorne Interlockings, respectively. The purpose of said generators is to provide a back-up energy supply for the signal system should the conventional electrical supply from the local electrical utility be, for whatever reason, disrupted.

The Organization submits that the use of contract forces to perform the work of installing and wiring the generators into the signal instrument case to provide backup power for the signal equipment within the house, alongwith the interlocking equipment in the field which is powered from the house and, in addition testing of the generators, violates the Scope Work Rule of the controlling July 1, 1966 Collective Bargaining Agreement which reads in its entirety as follows:

"These rules shall constitute an agreement between the Belt Railway Company of Chicago and Signal Department employees, of the classifications herein set forth, engaged in the installation and maintenance of all signal, interlockings (not including such equipment on rolling stock), highway crossing protection, excluding highway crossing gates not operated in conjunction with track or signal circuits, but including electrically operated crossing gates, and the repair and adjustment of signal relays and the wiring of signal instrument cases, and the maintenance of car retarder systems, and all other work in connection with the installation and maintenance thereof that has been generally recognized as signal work, represented by the Brotherhood of Railroad Signalmen and shall govern the hours of service, working conditions and rates of pay of the respective positions and employees of The Belt Railway Company of Chicago, specified herein, namely inspectors, assistant inspectors, foremen, assistant foremen, leading maintainers, leading signalmen, signal maintainers, signalmen, assistant signalmen and helpers."

The Organization contends that the above described work performed by the Lyons & Pinner Electric Company contractor workforce is generally recognized as signalwork as provided for by the terms of the above cited Scope Rule. Under the given circumstances of which this work was performed by the workforce of an outside contractor, the Organization asserts Carrier was by practice, obligated in advance of utilizing contract employees, to negotiate and reach a mutual agreement with it regarding the whole of the contracted-out work. In support of this asserted position, the Organization cites a mutual agreement reached by it and Carrier on December 16, 2002 for contractors to perform the identical scope-covered work as that performed here in the instant case of installing, wiring and testing of standby generators. The record evidence reflects that the 2002 mutual agreement was confirmed by the Parties in a telephone conference call and was reduced in writing by letter directed to General Chairman Stephen R. Ellison and signed by Timothy E. Coffey, General Counsel, and Secretary & Director of Human Resources. In pertinent part, said agreement reads as follows:

"We agreed that Belt Railway signal forces will assist an outside contractor in the installation of the generator, scheduled to take approximately two (2) weeks, on a 1:1 basis, meaning that one (1) BRC signalmen will be assigned to assist in the installation for every one (1) employee used by the Contractor.

Following installation, Carrier signal forces will be required to inspect the generator once per month. The Carrier will utilize contractors to perform all repairs of the generator and all maintenance covered by the initial warranty and any subsequent maintenance agreements."

The Organization maintains that as a standby generator is a key component of the signal system, its function being exclusive to powering the signal system, the cited 2002 mutual agreement demonstrates that the installation of standby generators at interlockingsis scope-covered signalwork. The Organization references Carrier'sown position with regard to contracting-out of work as substantiation of its position that the installation of standby generators is work reserved to signal bargaining unit employees, to wit: "In the absence of any reservation of work to a particular craft or class of employee, there is no restriction on contracting of such work"; asserting that given this position, Carrier would not have entered into the 2002 agreement if there really were no restrictions on it to contract-out the subject work.

In furtherance of its position, the Organization cited five (5) prior agreements mutually entered into by Carrier pertaining to the contracting-out of work reserved to signal employees. Specifically cited were the following such agreements:

"12/5/96 - Installation of snow melters

7/29/05 -Installation of 6300 feet of airline on the west side of Hump Tower at Bedford Park Clearing Yard

9/30/11 -Bore and install hand holds in each quadrant of brand new crossing at Marquette Road (67^th Street) on Carrier's Kenton line.

5/7/12 -Installation of approximately 1500 feet of airline onwest side of Hump Tower at Bedford Park Clearing Yard

6/2/14 - Installation of 1500 feet of airline on the east side of Hump

Tower at Bedford Park Clearing Yard"

In all cases involving work alleged by organizations to be work explicitly granted to their bargaining unit employees under a contractual scope rule, the burden of proof rests on a showing by the organization that the language/terms of the scope rule specifically delineates the work at issue being contested or presents an accurate description of the covered work in question. Failing to bear this burden, organizations can still prevail in claiming the work at issue being contested falls within their work jurisdiction by a showing that the work has historically been performed by their bargaining unit employees or that a past practice has been established whereby the work at issue has been performed by their bargaining unit employees and thereby generally recognized to be work reserved to them, or by a series of ad hoc negotiated agreements mutually executed by organizations and carriers, that the contested work pertaining to each occurrence be performed by their bargaining unit employees.

From a close, careful and comprehensive reading of the Scope Rule in this case, the Board cannot find any language that supports the Organization's position that the work at issue here of installing, wiring and testing standby generators is work reserved to Signal employees. Neither can the Board find any substantiation that the work at issue was shown by the Organization to be reserved to Signal employees by prior ad hoc agreements mutually entered into by the Parties (the Organization and Carrier), as all such ad hoc agreements presented as evidence by the Organization are found by us to be inapposite; that is, all, with the exception of the 2002 Agreement, pertained to work not at all related to the work at issue here having to do with installation of standby generators. With regard to the 2002 Agreement that involved work associated with the installation, wiring and testing of a standby generator, it was clearly shown by the Carrier as noted by its letter dated October 9, 2017 denying the claim written by Timothy Coffey, the very same Carrier officer that memorialized the 2002 Agreement in writing, verifying it was never the Carrier's intent or even contemplated by Carrier that said ad hoc Agreement would establish a binding precedent with regard to future generator installations. As further noted by Carrier, the 2002 Agreement was intended to create a viable installation and maintenance plan for a specific generator at a specific pointintimeandnottopermanently reservesuchworktorepresentedsignalemployees. The Board concurs in Carrier's position on this point, which was nowhere in the record evidence refuted that, between 2002 and 2017, it has effected no fewer than thirteen (13) other generator installations none of which involved or were subject to work sharing or other agreements covering such work mutually entered into with the Organization. We doubt very much the proposition that if the Organization truly believed the work of installing, wiring and maintaining standby generators was the work of its bargaining unit employees so identified by the Scope Rule referenced above, that it would have agreed to share this work by having entered into the 2002 Agreement. Likewise, if the Organization truly believed the standby generator work at issue here fell within the orbit of its scope of work, the Board is convinced it would have initiated claims to such work that arose during the years spanning 2002 to 2017, and not waiting until the filing of this instant claim.

We conclude by noting that the one (1) 2002 Agreement does not make a past practice. Accordingly, we rule to deny the instant claim.

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.