THIRD DIVISION
Award No. 44406 Docket No. MW-43254
21-3-NRAB-00003-200344
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 to perform Maintenance of Way and Structures Department work (construction of a depot building) at Mile Post
191.5 near Bushnell, Illinois on the Brookfield Subdivision, Chicago Division, beginning on May 20, 2014 and continuing (System File C-14-C100-163/10-14-0322 BNR).
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 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 the Note to Rule 55 and Appendix Y.
As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants J. Byrnes, M. Burr, S. Doggets, D. Kinzer and D. Kinney shall each now be compensated for an equal proportionate share of the straight time and overtime hours expended by the outside forces performing the above-described work beginning on May 20, 2014 and continuing until the violation ceases.”
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 May 2014, the Carrier arranged to have a contractor construct a new depot building in Bushnell, Illinois, after which the Organization filed this claim, alleging that the work involved was Maintenance of Way work customarily performed by B&B MoW employees. According to the Organization, no special skills were required;no special equipment was needed that the Carrier did not own or could not lease; no special materials were used that needed to be applied or installed through the supplier; and no emergency time requirements existed. In short, the Carrier did not meet any of the criteria set forth in Rule 55 that would permit the work to be contracted out instead of assigned to MoW forces. The Carrier contends that it has a long history, dating back to 1922, of contracting the construction of entire buildings; the Organization has not provided even one example of its forces constructing a building of any real substance. BNSF employees do not possess the necessary skills, nor does the Carrier adequately equipped to perform new construction. The B&B Sub-department performs routine maintenance and repair of buildings, bridges, and tunnels, but BNSF is a railroad, not a construction company, which is why the Carrier has historically contracted large-scale projects to others.
The Board has previously addressed this issue, in Third Division Award 40795 (Knapp, 2010). In that case, the Carrier contracted out extensive renovation work on several locker rooms (including the construction of a 24' x 32' addition. The Board found that the evidence established that there was historically a mixed practice regarding the work, and the Carrier did not violate the Agreement when it contracted it out. The evidence in the record in this case demonstrates that the Carrier has contracted out similar depot construction for decades. The Board finds no reason here
to deviate from its prior holdings. The Carrier did not violate the Agreement when it contracted out construction of the new depot at Bushnell, Illinois.
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.