THIRD DIVISION
Award No. 44383 Docket No. MW-42946
21-3-NRAB-00003-190363
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: (
(BNSF Railway Company (Former Burlington Northern (Railroad Company)
STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces [E80+ Constructors, LLC (E80)] and Shannon and Wilson, Inc Geotechnical & Environmental Consultants) to perform Maintenance of Way and Structures Department work (grout cracks) in the Flathead Tunnel between Mile Posts 1264.7 to 1271.6 on the Montana Division, Kootenai River Subdivision on Seniority District 100 on July 23, 24, 25, 26, 29, 30 and 31, 2013 (S-P-1776- C/11-14-0005 BNR).
The Agreement was further violated when the Carrier failed to provide the General Chairman with advance notice of its intent to contract out the work described in Part (1) above or make a good- faith effort to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces as required by Rule 55 and Appendix Y.
As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants D. Hotchkiss, B. Carter, R. Montambo, Jr., N. Smith and J. Wines shall now each be compensated for ‘... an equal an (sic) apportioned amount of the (224) straight time hours and
(98) overtime hours. This to be paid at their respective rates 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.
In July 2013, the Carrier used an outside contractor, E80+ Contractors and Shannon and Wilson Geotechnical & Environmental Consultants, to perform repairs on the Flathead Tunnel between Mile Posts 1264.7 and 1271.6 on the Kootenai River Subdivision of the Montana Division, Seniority District 100. The work entailed identifying and repairing leaks in the tunnel by grouting them. The claim alleges that the Carrier failed to provide the notice required under the Note to Rule 55 for contracting out scope-covered work, which includes routine grouting, and that there was no contractually recognized basis for having the work performed by third parties.
The parties have a history regarding specialized epoxy injection repairs to concrete structures. In the 1970s, epoxy injection was developed as a way to repair internal cracks and fissures that develop in concrete over time. From the beginning, the Carrier used outside contractors, not its own forces, to perform epoxy injection repairs, due to its specialized nature. That practice has continued over time. According to the Carrier:
There are at least three distinct stages, or phases involved in performing internal structural repairs; a contractor making these types of repairs will:
(1) Develop a repair plan by diagnosing the external and internal conditions (viz., core sampling, etc.) of the bridge structure, and
determining the extent of the required repair and the type of epoxy or other chemical filling agents required for the work; (2) rigorously prepare the external surface by sandblasting, and the internal fissure and cracks with pressurized water, air, or other means as necessary; and (3) under high pressure, inject epoxy or other chemical filling agents as appropriate, into the structure.
Because internal structural repair is an engineered repair process and improper diagnosis and/or selection and application of the filler materials can result in incomplete penetration and bonding of the filler with the internal structure, resulting in expensive new repairs and potential threat to human life and property, it requires specialized training and equipment to complete. This includes: a diagnostics ability to test core samples or other structure material; an understanding of the particular epoxies or sealing compounds available and how to select and properly use these products; and finally the ability, using high pressure injection equipment, to accurately determine the right amounts of filler to use, and the proper environmental conditions under which they can be used, to complete the repair. Additionally, since these epoxy materials are considered hazardous by the Department of Transportation, special training in the handling of the material, as well as a comprehensive safety and hygiene regimen for personnel using them (which BNSF forces have never had), is required.
The record includes copies of the Daily Field Activity Reports from Shannon & Wilson, which indicate the type of work performed each day. Some of the daily reports identify the type of grout used as polyurethane grout; others do not identify the type of grout applied. Also in the record is an e-mail dated October 1, 2013, from one Larry Woodley to “MOW Claims” in response to questions from the Carrier about the nature of the work in dispute here. Woodley’s e-mail confirmed that the contractor performed the work. Regarding notice, Woodley wrote: “Letter of Intent/System notice is sent out every year re: epoxy injection work to be contracted for bridges, etc.” He also addressed specialized skills: “BNSF forces have not been trained, or have the experience with injecting epoxy grouts in concrete structures such as tunnels, bridges, etc.” The record also includes an e-mail dated December 16, 2013, from Milton Monroy, Structures Foreman in Spokane, Washington, that responds to an e-mail query from Union representative David Carroll. Carroll’s e-mail is not in the record. Monroy wrote:
Structures work does entail Grouting from Top of pier work (grouting to level), grouting bolsters level to grouting under bridge decks bridge seams (concrete tubs, concrete slabs, side of piers, concrete columns, abutments, concrete box culverts) also Viaduct work to Tunnel repair, Diesel Tank Farms, Fueling & Facilities. Some of these jobs will need grout including concrete expansion urethane and polyurethane crack repair and epoxy. (Emphasis added.)
According to the Organization, actual records of the work performed by the contractors establish that it was not epoxy grouting, but was instead routine polyurethane grouting, which MoW forces have traditionally performed, and that it was accomplished with ordinary equipment: scaffolding, rock drills, air compressors, jackhammers, electric drills and saws, grout machines, a flatcar, and various hand tools. The Carrier did not provide notice of its intent to contract out the work, which is enough to warrant a sustaining award. With respect to the contracting itself, the Organization has met its burden to prove a prima facie case, and the Carrier has failed to rebut it. The Claim should be sustained and Claimants made whole for the lost work opportunity.
The Carrier contends that arbitral precedent has conclusively established that epoxy injection projects have been contracted for years. The Board has also held the piecemealing such projects is not feasible. The Organization has failed to establish that its members have customarily performed epoxy grouting. Accordingly, the work is not scope covered and the Carrier was not obligated to provide notice. Even if MoW forces had performed some epoxy grouting in the past, at best the evidence would establish a mixed practice, which also defeats the Organization’s claim to the exclusive right to perform the work in question. In the end, this is no more than a dispute in facts. And numerous arbitral awards have already determined that where there is a factual dispute over an essential fact, the Board must either dismiss the case or rule against the moving party.
The Board’s analysis in this case has to proceed from its prior holdings. The Board has previously recognized that epoxy injection work has historically been performed on the Carrier's property by outside contractors, not by its own forces. The Board has also held that the Carrier is not required to piecemeal parts of epoxy injection projects. (See, Third Division Awards 39909 (Clauss) and 32603 (Marx), and cases cited therein.) As Referee Campagna wrote in Third Division Award 38990:
Establishing that the disputed work is scope covered is most important where, as here, it is well established that epoxy injection projects are not, nor have they ever been, work “customarily" performed by BMWE- represented employees.
Accordingly, we find that the Organization failed to meet its threshold burden of demonstrating that the work at issue is scope covered. Under these circumstances the Board concludes that Appendix No. 8 was not violated when the Carrier proceeded to contract out the work at issue without providing advance notice to the General Chairman.
Rule 55 requires notice of the Carrier’s intent to contract out scope-covered work, which has been defined as work “customarily, historically and traditionally” performed by BMWE-represented forces. If the work is not scope covered, however, the Carrier is not obligated to provide notice prior to contracting it out. Per prior Board rulings, epoxy injection grouting work has not “customarily, historically, and traditionally" been performed by BMWE-represented forces. This means that it is not scope covered and that the Carrier need not provide advance notice of contracting.
But here, the Organization contends that the work performed was, in fact, not epoxy injection grouting; it was ordinary grouting work, which is scope covered work subject to the parameters of the Note to Rule 55. In support of its position, the Organization points to the daily activity reports from the contractor, which reference polyurethane grouting, but not epoxy grouting. There are two problems with this evidence. The first is that several of the reports do not indicate what type of grout was used, which means that epoxy grout could have been used. The second problem is that the evidence cited by the Organization is post facto, or after the work was actually done. If notice is required, it has to be given before work is undertaken. As described by the Carrier, when concrete repairs are needed, a diagnostic analysis has to be conducted, in order to determine roughly what type or types of grout will be required. Once the project is underway, examination of individual leaks, cracks or fissures after cleaning will dictate what type of grout to use to effect a satisfactory repair. The parties are not in dispute that concrete is, over time, subject to stresses and fractures, some of which will require epoxy grouting—which is stronger than normal grout—especially in bridges and tunnels, which are subject to water damage. The problem is that it may not be possible for the Carrier (or anyone) to know in advance exactly how much epoxy injection grouting will be needed on a specific job. There may, in fact, be instances where
the Carrier reasonably anticipated that epoxy grouting would be required, but ultimately, it was not. The notation in Larry Woodley’s October 1, 2013, email, to the effect that “Letter of Intent/System notice is sent out every year re: epoxy injection work to be contracted for bridges, etc.,” suggests that epoxy injection work is a regular and routine part of bridge, building and tunnel repair. In that case, the Carrier's assumption beforehand that any one job will require at least some epoxy injection grouting is justified.
In the end, either there is a dispute of material facts as to whether epoxy grouting was done, or the Carrier was justified by past experience in its belief that epoxy injection grouting would be required for at least some part of the repairs at issue, in which case there was no need for notice because epoxy injection grouting is not scope covered work. Either scenario requires the Board to deny the 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 13th day of April 2021.