Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43986 Docket No. MW-44813 20-3-NRAB-00003-180050

The Third Division consisted of the regular members and in addition Referee I. B. Helburn when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(Kansas City Southern Railway Company (former MidSouth Rail Corporation

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

(1)     The Agreement was violated when, on July 2, 2016, the Carrier assigned or otherwise allowed outside forces to perform Maintenance of Way work (road crossing repair) at/near/or in between Mile Post 102.6 on the Vicksburg Sub (System File C 16 07 02 (047)/H0416-6875 MSR).

(2)     The Agreement was further violated when the Carrier failed to notify the General Chairman, in writing, as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto regarding the aforesaid work and when it failed to assert good-faith efforts to reduce the incidence of subcontracting and increase the use of Maintenance of Way forces as required by the Side Letter of Agreement dated February 10, 1986 and the December 11, 1981 National Letter of Agreement.

(3) As a consequence of the violations referred to in Parts (1) and/or

(2) above, Claimants L. Hannibal, R. Washington, O. Hall, B. Colvin, B. Bullard and J. Herring shall each ‘… be compensated eight (8) hours at the regular rate of pay for one (1) day(s) which totals $243.44 for the Foreman, and $226.80 for the Machine Operators, and $241.48 for the Laborers plus late payment

 penalties based on a daily period rate of .0271% (Annual Percentage Rate of 9.9%) calculated by multiplying the balance of the claim by the daily periodic rate and then by corresponding the number of days over sixty (60) that this claim remains unpaid.’ (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.

By letter dated December 15, 2015, consistent with its established practice, the Carrier notified the General Chairman of the intent to contract outwork in 2016 on the MidSouth, South Rail and Gateway properties. The notice listed numerous contractors and the type of work, often in general terms, that each contractor might perform. The notice referred to the Carrier’s “long history of having contracted outside forces to perform services . . .” and also stated that it had neither “the necessary equipment nor manpower available to complete the work referred to above in a timely manner.” Among the contractors listed was CW&W, with the work listed, among other things, as crossing rehabilitation. The Carrier avers that the parties conferenced the December 15, 2015 annual notice.

OnMay 13,2016theCarriersentasupplementalnoticetotheGeneralChairman indicating that a contractor to be decided would begin work approximately on June 27, 2016 and lasting approximately seven (7) weeks. The work listed was “(i)nstall approx. 84,000crossties,switchtiesinstallation,roadcrossingrehab,relayapprox.66,000linear rail feet, tie and OTM pickup and distribution, undercutting, surfacing, bridge repair and rehab.” The supplemental notice ended by noting that there were no furloughed employees on the MidSouth property, that “all other employees are engaged in other on-going projects” and that the Carrier did “not have the equipment or available manpower to perform these projects in a timely manner.” Work location was to be the Vicksburg and Meridian Subdivisions.

While the Carrier asserts that it cannot find records demonstratingthat CW&W performed the disputed work, the Organization submitted an undated, handwritten statement signed by L. Hannibal and R. Colvin indicating that they observed CW&W workonacrossingatMP102.6ontheVicksburgSubonJuly 2,2016. TheOrganization has stated that the employees listed in the claim have established and hold seniority in the Maintenance of Way and Structures Department and maintain seniority on the territory where the disputed work was performed. The aforementioned claim was timely filed and properly processed on the property without resolution and, therefore, progressed to this Board for final adjudication.

The Organization insists that the disputed work is scope work reserved to Maintenance of Way employees and historically assigned to and performed by these forces. The Carrier is not free to contract out this work, as contracting out may occur only if one or more of three conditions listed in the February 10, 1986 Side Letter of Agreement (SLOA) is met. A further violation of relevant agreements occurred when the Carrier failed to “properly notify the General Chairman for the purpose of entering into good faith discussions prior to the time work was contracted to the outside forces.” Notification must include the work to be subcontracted and the reasons therefor in ordertomeettherequirementsoftheSLOAandtheDecember11,1981NationalLetter of Agreement (NLOA). The December 15, 2015 and May 13, 2016 notices relied on by the Carrier do not specifically identify the disputed work or the exceptions that would justify subcontracting, therefore foreclosing the opportunity for a good faith discussion that might have resulted in the Agreement (NLOA). A sustaining award is required. The Carrier’s failure “to make a good faith effort to reduce the incidence of subcontracting and increase the use of Maintenance of Way forces” is “an independent standalone violation” requiring a sustaining award.

Carrier defenses must be rejected because the Carrier did not provide the required advance notice. The eyewitness statement and the Carrier’s defense shows that the disputed work was performed. Reliance on the concept of exclusivity is misplaced as the work clearly is reserved to the Carrier’s Maintenance of Way forces subject to exceptions. Moreover, the exclusivity concept is inconsistent with the NLOA dictate that carriers must act in good faith to reduce subcontracting and increase use of maintenance of way forces. Even if the Carrier could show a past practice, which it cannot, such a practice would not override the language of the SLOA or Appendix 1 of the Agreement. And, the Carrier has not established an exception that would allow the subcontracting.

Finally, the Carrier has not “seriously disputed” the Organization’s requested remedy. The Claimants were available to perform the contracted work. Even if they were fully employed, they are entitled to a monetary remedy, which is standard in such cases.

The Carrier asserts that the Organization has failed to provide substantial evidence to make a prima facie caseand thushas failed tocarry its burden of proof. The December 15, 2015 notice to the General Chairman was timely and identified general trackmaintenanceasworktobecontractedout. TheMay 13,2016supplementalnotice, not required to provide exact dates, described the work to be contracted, the equipment to be used and the contractor. The disputed work involved a mixed practice and the Organization cannot show that the work was customarily and exclusively done by its forces. The matter was conferenced without agreement, leaving the Carrier free to contractthework because neither equipmentnor manpowerwereavailableto complete the work in a timely manner. Neither the May 17, 1968 Agreement, Article IV or the LOA were violated. These agreements support management’s inherent right to use contractors. Maintenance of Way forceswere fully employed. The April 17, 2003 letter from National Carriers Conference Committee Chair Allen to the Organization’s National President Fleming notes that Article IV applies only to work within the scope of the Agreement and that the Berge-Hopkins 1981 letter has been abandoned by both parties. Because all Claimants were fully employed at times relevant, no monetary remedy is due.

Provisions considered by this Board in adjudicating this dispute are set forth below, beginning with the Scope Rule found in the December 11, 1981 NLOA, which in pertinent part reads as follows:

“(a) These rules govern the hours of service, rates of pay and working

conditions of all employees in the Maintenance of Way and structures department performing work described in Appendix 1, and other employees who may subsequently be employed in said Department, represented by the Brotherhood of Maintenance of Way Employees.

• * *

(d)     Work covered by this agreement shall not be removed from the application of the rules of this agreement except by mutual agreement between the parties signatory hereto.”

• * *

Appendix 1 lists the following Maintenance of Way and Structures Department positions:  Track Foreman/Bridge Foreman, Welder, Assistant Foreman, Heavy Machine Operators, Light Machine Operators and Trackmen/Bridgemen. The Appendix also includes the following language:

“Employees included within the Scope of this Agreement shall perform all work in connection with the construction, maintenance, repair, and dismantling of tracks, roadbeds, structures, facilities, and appurtenances related thereto, located on the right-of-way and used in the operation of the carrier in the performance of common carrier service.

Kansas City Southern Railway Company and the Brotherhood of MaintenanceofWay EmployeesarepartytoaMay 17,1968Supplemental Agreement, with Article IV, Contracting Out, relevant to this dispute:

In the event a carrier plans to contract out work within the scope of the applicable schedule agreement, the carrier shall notify the General Chairman of the organization involved in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto.

If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the carrier shall promptly meet with him for that purpose. Saidcarrierandorganization Representativesshallmakeagood faith attempt to reach an understanding concerning said contracting, but if no understanding is reached the carrier may nevertheless proceed with said contracting, and the organization may file and progress claims in connection therewith.

Nothing in this Article IV shall affect the existing rights of either party in connection with contracting out. Its purpose is to require the carrier to give advance notice and, if requested, to meet with the General Chairman or his representative to discuss and if possible reach an understanding in connection therewith.

Existingruleswithrespecttocontractingoutonindividualpropertiesmay be retained in their entirety in lieu of this rule by an organization giving written notice to the carrier involved at any time within 90 days after the date of this agreement.”

The February 10, 1986 LOA is in the form of a letter on MidSouth Rail Corporation letterhead to Organization General Chairman T. F. Vance from President and Chief Executive Officer E. L. Moyers. The letter itself reads as follows:

“This is to confirm our understanding regarding certain issues related to thelaboragreement(Agreement)betweentheMidSouthRailCorporation (MSRC) and theBrotherhood of Maintenance of Way Employees (BMWE).

It is the intent of the Agreement for the MSRC to utilize maintenance of way employees under rules of the Agreement to perform the work included within the scope of the Agreement; however, it is recognized that in certain specific instances the contracting out of such work may be necessary provided one or more of the following conditions are shown to exist:

1)      Special skills necessary to performtheworkare not possessed by its Maintenance of Way Employees.

2)      Special equipment necessary to perform the work is not owned by the Carrier or is not available to the Carrier for its use and operation thereof by its Maintenance of Way Employees

3)      Time requirements exist which present undertakings not contemplated by the Agreement that are beyond the capacity of its Maintenance of Way Employees.

In the event the MSRC plans to contract out work because of one or more of the criteria described above, it shall notify the General Chairman in writing as far in advance of the date of the contracting transaction as is practicable and in any event, not less thanfifteen (15) days prior thereto. Such notification shall clearly set forth a description of the work to be performed and the basis on which the MSRC has determined it is necessary to contract out such work according to the criteria set forth above.

If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of MSRC shall promptly meet with him for that purpose and the parties shall make a good faith effort to reach an agreement setting forth the manner in which the work will be performed. It is understood thatwhen condition 3 is cited as criteria for contracting work, MSRC, to the      extent         possible     under         the    particular circumstances, shall engage its Maintenance of Way Employees to perform all maintenance work in the Maintenance of Way and Structures Department, with due consideration given to the contracting out of constructionworkintheBridgeandBuildingSubdepartmenttotheextent necessary. If no agreement is reached, SRC may nevertheless proceed with said contracting and the Organization may file and progress claims in connection therewith.

Nothing herein contained shall be construed as restricting the right of MSRC to have work customarily performed by employees included with the Scope of Agreement from being performed by contract in emergencies that prevent the movement of traffic when additional force or equipment is required to clear up such emergency condition in the shortest time possible. In such instances, MSRC shall promptly notify the General Chairman of the work to be contracted and the reasons therefor, same to be confirmed in writing within fifteen (15) days of the date of such work commences.

Please indicate your concurrence with the arrangements described above by signing this letter in the appropriate space below.”

General Chairman Vance signed, thus indicating his concurrence.

Because the Organization’s claim fails without further consideration if the disputed work is determined not to have been scope work or if the Organization cannot meet its burden of proving that the disputed work actually was performed, these questions are primary. Appendix 1 of the 1981 NLOA includes foremen, machine operators and trackmen (laborers) among the Maintenance of Way and Structures Department positions and includes within scope work “construction, maintenance, repair, and dismantling of tracks, roadbeds . . .” There is no doubt that cribbing out of foul ballast is traditional Maintenance of Way work within the Scope Rule. The Organization does not have to show that Maintenance of Way forces have exclusively performed that work in the past. If such a showing were the case the contractual attempt to preserve bargaining unit work would be meaningless. Moreover, even if the disputed work is of the mixed practice variety—performed at times by Maintenance of Way employees and at other times by outside forces—the Carrier is not relieved of the obligation to provide appropriate notice of the intent to contract and to justify the contracting as consistent with one or more of the three exceptions set forth in the 1986 SLOA.

The SLOA states that the notice of intent to contract “shall clearly set forth a description of the work to be performed and the basis on which the MSRC has determined it is necessary to contract out such work. . .” The annual notice dated December 15, 2015 does not meet the requirements of an effective notice. “(I)t is too broad and generic to serve the purpose of the required notice, which is to give the Organization sufficient information to be able to evaluate whether it has any objections to the proposed contracting out and to prepare for meaningful discussions in any conference that might be requested.” Third Division Award 43834. Moreover, the Board in Third Division Award 42419 wrote that the notice of intent to contract should include the starting and ending dates of the work, the number of contractor employees to be used and the hours involved. Blanket type notices with vague descriptions are inadequate. Third Division Award 29331.

The May 13, 2016 Supplemental Notice, in addition to the aforementioned work to be done, listed the type of equipment to be used as “spike pullers, spikers, rail laying equipment, pettibones, rail heaters, tie plugging machines, tampers, ballast regulators, grapple trucks, back hoes, dump trucks, trackhoes, rail welding trucks, crew trucks and tool, tie inserters, rail anchor machines.”

The supplemental notice, while including a number of projects, is significantly narrower than the December 15, 2015 generic annual notice and includes road crossing repair. The Board finds accurate the Carrier’s assertion that the supplemental notice was conferenced with no agreement forthcoming.The conference offered the Organization the opportunity toobtain clarity onthe contemplatedprojects anddiscuss alternatives to contracting. Because no agreement was reached, in accordance with the SLOA, the Carrier had the right to contract the work and the Organization had the right to file a claim.

The Carrier’s assertion that its own forces were fully employed and that there were no Carrier Maintenance of Way forces on furlough has not been contradicted and is, therefore, found to be factual. The supplemental notice stated that the Carrier did “not have the equipment or available manpower to perform the projects in a timely manner.” Because the Carrier has not explained why the equipment to facilitate road crossing repair was not owned by or otherwise available to it, the Board considers that the Carrier has not relied on the second exception set forth in the February 10, 1968 SLOA. Therefore, the Board focuses on the third exception—the existence of time requirements that could not be met simply by using the Carrier’s own fully-employed Maintenance of Way forces.

The Board assumes that it is appropriate to minimize any disruption to train travel that might result from the road crossing repair work, even though this was apparently only a one-day project. The Organization has not shown how possible disruption could be minimized by using the already fully-employed Maintenance of Way forces. The Board finds that the Carrier’s reliance on the third exception, even for this short-term project, was appropriate and did not show bad faith.

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 5th day of March 2020.