Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44353 Docket No. MW-45706
21-3-NRAB-00003-200006
The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(National Railroad Passenger Corporation (AMTRAK) – (Other than Northeast Corridor
“Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement when it assigned outside forces (Holland Welding) to perform Maintenance of Way Track Sub-Department work (thermite welding) between Mile Posts
145.2 and 160 on the Michigan Line beginning on April 9, 2018 and subsequent thereto, instead of furloughed Welders S. Humphries and J. Teeter (System File BMWE-627 NRP).
The Agreement was further violated when the Carrier failed to give the General Chairman advance written notice of its plans to contract out said work or make a good-faith attempt to reach an understanding concerning said contracting as required by Rule 24.
As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants S. Humphries and J. Teeter shall now ‘... be compensated for any and all hours worked by Holland Welding ... at their respective straight and overtime rates of pay and continuing until such time the Carrier properly advertises and awards the positions of Welders. ***’”
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.
Claimants have established and hold seniority in the Carrier’s Maintenance of Way Department. Beginning on April 9, 2018 and continuing, the Carrier assigned outside forces (Holland Welding) to perform welding track work between Mile Posts
and 160 on the Michigan Line. The employees of Holland Welding operated a Holland-owned truck to perform rail welding in the electric flash-butt method.
On June 5, 2018, the Organization filed a claim based on this work. On June 26, 2018, the Carrier responded and denied the claim. The parties were unable to resolve the claim on-property, so it is now properly before this Board for final adjudication.
The Organization contends that the claimed work is typical Maintenance of Way welding work, which has ordinarily and traditionally been assigned to and performed by the Carrier’s forces. The Organization contends that this work is contractually reserved to its members. The Organization contends that regardless of the method used to weld track, the underlying work is Scope-covered.
The Organization contends that the Carrier failed to give advance written notice of its plans to contract out the work. Therefore, the Organization contends that none of the Carrier’s reasons for contracting out the work may be considered. Finally, the Organization contends that at the time of this dispute, Claimants were furloughed welders.
The Carrier contends that it did not violate the Agreement when it allowed Holland Welding to perform flash-butt welding on the Michigan Line between mileposts 145.2 and 160. The Carrier contends that the work at issue here, operating a Holland truck (for the purpose of flash-butt welding), is proprietary work that has never been done by Carrier employees at this location.
The Carrier contends that this is not Scope-covered work as neither the Claimants nor any other BMWE-represented employees on the Michigan Line are qualified to operate the equipment utilized by Holland employees. The Carrier contends that Carrier’s employees have never operated a Holland truck and the Carrier does not own a Holland truck in Michigan.
The Carrier contends that Claimants were employed by the Carrier while the Holland employees were on the property and no employees were furloughed. Therefore, the Carrier contends, that no remedy should be awarded.
Resolution of this dispute must begin with the Scope Rule in the parties’ collective bargaining agreement which states,
“RULE 1 - SCOPE
The Rules contained in this Agreement shall govern the hours of service, rates of pay and work conditions of Maintenance of Way Department employees classified as B&B Foreman, Track Foreman, B&B Mechanic, Welder and of other employees of similar classifications under the jurisdiction of the Maintenance of Way Department, except those employees who come within the scope of other existing agreements.
While it is not the intent of the parties to either diminish or enlarge the work being performed in a territory under this Agreement, the work generally recognized as work ordinarily performed by the Brotherhood of Maintenance of Way Employees as it has been performed traditionally in the past in that territory will continue to be performed by those employees.”
This dispute comes down to the nature of the claimed work. The Organization contends that the claimed work is track welding work, which has ordinarily and customarily been performed by its members. The Organization contends that the fact
that the Carrier believes it has found a more efficient method of performing track welding work does not change the underlying premise: the work is Scope-covered. The Carrier responded that the work was flash-butt welding, which has not traditionally been performed by its forces in this territory. The Carrier points out that the Agreement specifically relieves the Carrier from an obligation to enlarge the work being performed in a territory under this Agreement.
In Award 2 of Public Law Board 6671, that Board addressed this question directly with respect to another territory, writing:
“There can be no serious question that the welding of rail joints is covered by the contractual Scope Rule. The Scope Rule expressly includes “track inspection, maintenance, construction or repair work from four (4) inches below the base of the tie up, and undercutting.” Rail joint welding is an essential component of such work, and the evidentiary record conclusively demonstrates that the Carrier’s Track Department welders historically have performed welding work of the scope and magnitude of the particular work at issue here, involving large-scale rail installation and an associated high volume of welds. The record shows that the Carrier’s BMWE forces have performed this type of work using a number of methods, technologies, and tools, but particularly the boutet and thermite processes.”
While the Carrier acknowledged that welding work has been done in the past by its forces, it argues that the claimed work here is electric flash butt welding, which has never been done by these employes. But, as found by Public Law Board 6671, using new or better ways of doing the same work cannot remove the work from the Scope Rule:
“If newer methods and technologies allow certain work to be completed more quickly and/or more cheaply, without harming the quality of the finished work, then the Carrier must have the right to utilize such newer technologies as part of its on-going operations. If the Carrier chooses to adopt new methods and technologies in connection with Scope-covered work, however, then it must make it possible for its own employees to perform that work in accordance with the Scope Rule. If the simple adoption of a new method or technology to perform work, requiring the
use of equipment that the Carrier does not already own, was sufficient to allow the Carrier to contract out Scope-covered work, then the Scope Rule’s protections would be completely undercut. If the Scope Rule is to have any meaning, and it must, then the Carrier must be obliged to have its own employees utilize such new methods or technologies to perform Scope-covered work, with the only exceptions being those expressly set forth in the Scope Rule.”
Having found that the work of “welding” is Scope-covered work, despite the fact that a new methodology was to be used, this Board must now turn to Carrier’s obligations when contracting out Scope-covered work. Rule 24 of the parties’ Agreement states,
“RULE 24 - CONTRACTING OUT
In the event the Carrier plans to contract out work within the scope of the schedule agreement, the Chief Engineer 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 than 15 days prior thereto.
If the General Chairman requests a meeting to discuss matters relating to the said contracting transaction, the Chief Engineer or his representative shall promptly meet with him for that purpose. The Chief Engineer or his representative and the General Chairman or his representative shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached the Chief Engineer may nevertheless proceed with said contracting, and the General Chairman may file and progress claims in connection therewith.”
Here, it is undisputed that the Carrier provided no notice to the Organization of its intent to contract out this Scope-covered work. As agreed in Rule 24, the Carrier was obligated to provide advanced written notice and an opportunity to conference before it contracted out this work, but it failed to do so.
With respect to the remedy to be awarded, this Board is persuaded that Claimants were entitled to compensation as claimed for the amount of work
performed by outside contractors. This Board is persuaded by prior precedent that to hold otherwise would be to permit the Carrier to violate the parties’ Agreement with impunity.1
Claim sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 6th day of January 2021.
1 There is a dispute in fact as to whether Claimants were on furlough at the time the outside forces performed this work. To the extent that resolution of that issue is necessary to determine the proper monetary remedy, it is remanded to the parties.