THIRD DIVISION
Award No. 44424 Docket No. MW-43423
21-3-NRAB-00003-200404
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 (R. J. Corman) to perform Maintenance of Way and Structures Department work (remove and replace a track switch) at the Northwest Grain switch in Williston, North Dakota on the Glasgow Subdivision, Montana Division on August 19, 2014 (System File B-M-2783-EN/11-15-0083 BNR).
The Agreement was further violated when the Carrier failed to provide the General Chairman with advance notification of its intent to contract out 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.
The claim* as appealed by General Chairman Carroll on February 3, 2015 to General Director Labor Relations W. Osborn shall be allowed as presented because said appeal was not disallowed by Director Labor Relations W. Osborn in accordance with Rule 42.
As a consequence of the violations referred to in Parts (1), (2) and/or (3) above, Claimants T. Brandt, D. Jacobson, S.
Szymanski, W. Oyloe, C. Gable, G. Nybakken, M. Regalado, J. Reagor, T. Rakes, R. Thilmony, D. Petroff, K. Burch, T. Vandall, T. Rudolph and R. Najar shall each ‘*** receive eight
(8) straight time hours and six (6) overtime hours as worked by the contract (sic) employees, with pay to be at their respective rates of pay.’ *The initial letter of claim will be reproduced within our initial submission.”
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 15, 2014, the Organization filed this claim, alleging that the Carrier had violated the Agreement when it hired an outside contractor (R.J. Corman) to remove and replace a switch at Mile Post 121.7, the Northwest Grain Switch in Williston, North Dakota, on the Glasgow Sub-division, Montana Division. According to the Organization, the work is typical of that customarily, traditionally and historically performed by Carrier forces, and it is subject to the constraints placed on contracting out by the Note to Rule 55. By letter dated December 9, 2014, the Carrier declined the Claim, on the grounds that (1) it had provided two notices, on June 5, 2013, and on March 19, 2014, and (2) the work in dispute was part of a large capacity expansion project, which could properly be contracted out.
The Organization filed appeals by letters dated February 3, 2015, and February 6, 2015. It appears that there was a paperwork problem—duplicate claims may have been filed—but there is no dispute that the official date of the Organization’s appeal was February 6, 2016. If the Carrier is going to disallow a claim, it must do so in writing within sixty days of the filing of an appeal. In this case, the Organization contends that the Carrier had to disallow the claim here by April 5, 2015. The Carrier
sent its letter, again disallowing the claim, by UPS Next Day Air service on April 2, 2015. However, its letter was not delivered by UPS until 10:15 a.m., April 6, 2015. The Organization now contends that pursuant to Rule 42, the claim must be allowed because it did not receive notice from the Carrier that it was disallowed within sixty days.
Rule 42, Time Limit on Claims, states in relevant part:
A. All claims or grievances must be presented in writing by or on behalf of the employe involved, to the officer of the Company authorized to receive same, within sixty (60) days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the Company shall, within sixty (60) days from the date same is filed, notify whoever filed the claim or grievance (the employe or his representative) in writing of the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Company as to other similar claims or grievances.
The Organization relies for its position on Third Division Award 37811 (Meyers 2006) and Third Division Award 37842 (Kenis 2006). In Award 37811, the Organization filed an appeal on November 6, 2003, and the Carrier’s response was transmitted to the Organization on January 5, 2004—the 60th day—by fax and by UPS Next-Day Air. The Organization received the UPS delivery on January 6, 2004. The Board did not address the notification by fax. It held: “The record reveals that the Carrier responded to the appeal by the Organization by letter dated January 5, 2004, which was not received by the Vice General Chairman until January 6, 2004. Consequently, the Carrier’s response was not received by the Organization’s representative until either 61 or 62 days after it was filed. The Carrier, therefore, violated the requirements of Rule 42(A) and … the claim must be sustained as written.”1
In Award 37842, the Board noted that precedent has established that “a claim has been ‘presented’ to the Carrier within the 60-day time limit period when the Carrier actually ‘receives’ the claim.” The Board then acknowledged the divergence of
opinion within the Board as to whether a disapproval must be sent by the 60th day (“the mailbox rule” adopted in Third Division Award 32727, Public Law Board 3460 Award 18, and Third Division Award 24440), or when it is received, as the Board held in Award 37811. In Third Division Award 37842, the Organization filed a claim on June 24, which was received by the Carrier on June 28. The Carrier denied the claim by letter dated August 27, which was received by the Organization on August 30. The Board held:
We need not resolve the divergent lines of authority in this case because the Carrier failed to establish that either actual or constructive notification of the claim denial was provided to the Organization within the required 60-day time limit. Although the Carrier produced its denial letter dated August 27, 1999, there is no evidence in the record to show when or how it was dispatched. The date that the letter was written does not determine the date of denial under either line of authority.
The facts in the instant case distinguish it from both Award 37811 and Award 37842. Unlike Award 37842, the record here includes a copy of the UPS Tracking Receipt for the Carrier’s letter of denial, showing that it was sent via UPS Next Day Air service on Thursday, April 2, 2015, or 58 days after receipt of the appeal. The Receipt shows several routine steps in the delivery process, including a “destination scan” at 6:17 a.m. on April 3, 2015. However, at 9:40 a.m. on April 3, there is a notation: “Delivery has been rescheduled due to holiday closures.” A quick on-line search established that in 2015, Easter was on Sunday, April 5. Thus, April 3 was Good Friday. It is impossible to tell from the Tracking Receipt whether the “closures” referenced were the Organization’s offices or another, more general closure. But that is irrelevant. The critical point is that the Carrier sent its denial well before the 60th day via a normally reliable next-day air delivery service. There is no indication in the record that the Carrier had any notice when it sent the letter that it would not, in fact, be delivered the next day. The Tracking Receipt shows that the letter in fact reached its destination in Minneapolis, Minnesota, early the next day, but could not be delivered due to a “holiday closure.” The Carrier made every good faith effort to have notice delivered to the Organization before the end of the 60-day period, but its effort was stymied by forces outside its control. This is not a case where the Carrier waited until the last minute before responding. Under ordinary circumstances, the Organization would have received the Carrier’s letter within the 60-day period with a few days to spare. As it is, the letter was delivered at 10:15 a.m. Monday, April 6, 2015,
The Board turns now to the substance of the Claim. The record includes several notices to the Organization of the Carrier’s intention to subcontract capacity expansion projects on the Glasgow Sub-division. A notice dated June 5, 2013, explained the need to expand existing capacity in the Bakken Shale area as rapidly as possible to meet the demands for freight volume. The notice specifically detailed work to be done on the “Glasgow Sub—Phases 1—6.” A notice dated March 19, 2014, specifically included Mile Post 121.7 under “Glasgow Sub — Crossing, Turnout, and Bridge Panel Renewals.”
The Note to Rule 55 permits contracting under certain circumstances, specifically when “special skills not possessed by the Company’s employees, special equipment not owned by the Company… 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.”
The Board has recognized the Carrier’s right to contract out large “capacity” projects. (See, e,g., Third Division Awards 41223, 41222, 37434, and 38383.) Moreover, the Board has consistently held that the Carrier does not have an obligation to piecemeal small portions of large projects that are otherwise properly contracted out.
The record before the Board is sufficient to conclude that the work described in the Carrier’s June 5, 2013, and March 19, 2014, notices to the Organization was part of a large capacity expansion project on the Glasgow Sub-division and met the requirements of special equipment not owned by the Carrier and special skills not possessed by BNSF employees. Nor was the Carrier obligated to piecemeal any part of the larger project. Accordingly, the Carrier did not violate the parties’ Agreement when it contracted the specific work disputed in this Claim.
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.