THIRD DIVISION
Award No. 44388 Docket No. MW-42967
21-3-NRAB-00003-190369
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
(BNSF Railway Company (Former Burlington Northern (Railroad Company)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces (U.C.M., Rask and Thompson Farms) to perform Maintenance of Way and Structures work (haul and unload gravel) within the Galesburg Yard at the Peoria Wye under the 4th Street Bridge and the west end of the Knox Plant on October 7, 9, 10, 15, 16 and 17, 2013 (System File C-14-C100-63/10-14-0074 BNR).
The Agreement was further violated when the Carrier failed to properly notify and confer with the General Chairman regarding the aforesaid work 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 E. Allen, K. Kane and D. Easley shall each be compensated for forty-eight (48) hours straight time at their respective rates of pay.”
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 October 7-17, 2013, outside contractors, UCM, Rask, and Thompson Farms hauled and piled gravel into the Peoria Wye under the 4th Street Bridge west of the Knox Plant in the Galesburg Yards. The Organization filed this claim on November 19, 2013, alleging that the Carrier had violated the parties’ Agreement by contracting out bargaining unit work and by failing to give proper notice as required by Rule 55. According to the Organization, the work that was done by the contractors is work that MoW forces have historically, customarily and traditionally performed. The Carrier owns dump trucks that could have been used to haul the gravel. The work was done some 28 months after the Carrier’s alleged notice, which gave it adequate time to schedule its own forces to perform the work. The notice was not sufficient, as it failed to provide the specific dates and locations that the work would be performed, a full description of the work, the length of time estimated to complete the work, and the number of contractor employees anticipated to be used. The Carrier responded that it had provided a sufficient notice, by letter dated June 2, 2011, and that the work was properly contracted out under the criteria established in Rule 55.
The June 2, 2011, notice stated:
As information, BNSF plans to contract all work associated with the capacity expansion project located near the existing AMTRAK Depot in Galesburg Yard on the Chicago Division. This multi-phase project will include extensive track, utility, and dirt work. BNSF is not adequately equipped to handle all aspects of a project with this magnitude, nor do BNSF forces possess the specialized dirt work skills necessary for this portion of the project. The contractor will provide all the necessary heavy
equipment, with operators, to perform the specialized dirt work for this capacity expansion. The work to be performed includes, but is not limited to, install necessary erosion control and SWPPP (including silt fencing); necessary excavation for embankment of 3 new yard tracks; furnish/haul/unload necessary sub-grade material for 3 new yard tracks and third main track; furnish/haul/unload necessary sub-ballast material for 3 yard tracks and 1 new main track; grade/build up/compact 3 approx. 8,200 l.f. yard tracks; necessary reconfigure 2 interlocker plants (Knox St. and A-Plant West); grade/build up/compact approx. 8,400 l.f. of 3rd Main; install new No. 24 X-over plant to Mendota Sub; install/extend necessary trench drains, manholes, and culverts; assist with placement of necessary turnout components; necessary horizontal boring of new drain lines; modification of necessary utility lines; install necessary landscaping; and debris removal.”
It is anticipated that this work will begin on approximately June 21, 2011.
The question of what constitutes adequate notice is a perennial source of disagreement between the parties. The Board has held previously that notice must be sufficient for the Organization to be able to determine if it wants to protest the proposed contracting out and to be able to prepare for meaningful discussions with the Carrier if it does. While a “perfect” notice would include all the details of who, what, when, where, how and why, the Board has also recognized that with very large capacity expansion projects, it is not realistic to specify locations, dates, and other information, due to the fact that large construction projects are subject to hiccups in their projected progress— foul weather and material delays may slow things down, while fair weather and good working conditions may mean that things move forward more quickly than anticipated. The notice at issue here is sufficient for the purposes of Rule 55: it gives detailed information on the type of work to be performed by contractors and its location, along with a projected start date.
Rule 55 requires that work that is customarily, historically and traditionally performed by BMWE-represented forces may only be performed by outside forces when certain criteria are met:
[S]uch work may only be contracted provided that special skills not possessed by the Company’s employes, special equipment not owned by the Company, or special material available only when applied or installed through supplier, are required; or when work is such that the Company is not adequately equipped to handle the work, or when emergency time
requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company's forces.
In this case, the Carrier indicated that “BNSF is not adequately equipped to handle all aspects of a project with this magnitude, nor do BNSF forces possess the specialized dirt work skills necessary for this portion of the project.” This brings the proposed contracting squarely within the exceptions defined in Rule 55. The Board has previously recognized that projects of a magnitude such as the Galesburg Yard expansion at issue here fall under the “not adequately equipped” exception. Nor is the Carrier required to piecemeal portions of such a large project. Under these circumstances, the claim is denied.
Claim denied.
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.