THIRD DIVISION
Award No. 44393 Docket No. MW-42994
21-3-NRAB-00003-190374
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 (BN Logistics) to perform Maintenance of Way and Structures work (unload concrete pad crossing panels) at various locations in the Hobson Yard in Lincoln, Nebraska on November 11 and 12, 2013 (System File C-14-C100-45/10-14-0080 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 R. Hetherington and G. Bradley shall each now be compensated for sixteen (16) hours at their respective straight time 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.
This case arose on November 11 and 12, 2013, when the Carrier used a contractor, BN Logistics, to unload concrete pad crossing panels at various locations in the Hobson Yard in Lincoln, Nebraska. The Organization contends that the work performed by the contractor was routine track maintenance work of the sort customarily, historically and traditionally done by the Carrier’s Maintenance of Way forces, so it is scope-covered work and the Note to Rule 55 on contracting applies. The notices submitted by the Carrier are inadequate, because they did not mention anything about contractors unloading concrete crossing pads and were not sufficiently specific regarding the duration of the project, locations of the work, the number of contractor employees, and similar. In addition, the Hobson Yard project was completed on July 23, 2013. The work in dispute was not part of the larger improvement project. The Carrier needed to provide new notices for the work and it failed to do so.
According to the Carrier, it provided multiple notices to the Organization in relation to the Hobson Yard improvement project, which was a multi-year, multi-phase project. Given the magnitude of the project, BNSF was not adequately equipped with the necessary equipment, nor do BNSF forces possess the necessary skills to perform all aspects of the project, especially specialized dirt work and hot-mix paving skills, and the Board has held that Carrier forces do not perform construction projects of the magnitude of the Hobson Yard improvement project. Moreover, the Carrier is not required to piecemeal various portions of such large projects. The work at issue was included in the notices. The Hobson Yard project was not completed on July 23, 2013, but was ongoing when the disputed work occurred.
The Organization has the burden of proof in contract cases. Here, the Carrier noticed a “multi-year, multi-phase” project to improve the Hobson Yard, of such magnitude that it was not feasible to accomplish the work using solely its own forces. Moreover, the project required special skills that its own forces do not have. The notices complied with the notice requirement of Rule 55, and the project fell within the exceptions set forth in Rule 55 for contracting out what would otherwise be bargaining unit work.
There is insufficient evidence in the record to support the Organization’s various contentions. The notices were sufficiently specific to meet the notice requirements of Rule 55. Given the magnitude of the Hobson Yard project, the Carrier did not violate Rule 55 when it contracted it out. There is no support for the Organization’s claim that the Hobson Yard project was completed on July 23, 2013. The Board finds that the disputed work was part of the Hobson Yard improvement project, that the project was properly noticed and contracted out under Rule 55, and that the project was ongoing when the work was done. 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.