THIRD DIVISION
Award No. 44732 Docket No. MW-45645
22-3-NRAB-00003-190543
The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
(The Kansas City Southern Railway Company (former SouthRail Corporation)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned or otherwise allowed outside forces to perform Maintenance of Way work (bridge repair) on bridges at/or between Mile Posts 266 and 261 on the Artesia Subdivision on March 6, 7, 8, 9, 10, 11, 12, 13, 20, 21, 22, 23, 24, 25, 26 and 27, 2018 [System File 18 03 06 (020)/K0418-7635 SRL].
The Agreement was further violated when the Carrier failed to properly 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 work referred to in Part (1) above and when it failed to assert good-faith efforts to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces as required by the Side Letter of Agreement dated February 25, 1988 and the December 11, 1981 National Letter of Agreement.
As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants J. Comer, R. Conner, II, B. Wheeler, A. Young, S. Burmaster, C. Maxwell and D. Waldon shall now each ‘... be compensated ten (10) hours a day at the regular rate of pay for sixteen (16) days which totals $4289.60 for the
Bridgeman.’ (Emphasis in original).”
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.
There is no dispute that in the past the Carrier has subcontracted the work involved in this dispute and that, in the past, the covered employees have also performed the work. This is a mixed-practice case. The question in this case is sufficiency of notice under the governing Agreement language.
By letter dated December 15, 2017, the Carrier sent annual notice of subcontracting to the Organization, listing contractors and type of work to be performed on the Carrier’s properties during 2018. Carrier Exhibit A at 9.
The Carrier supplemented the December 15, 2017 notice by letter dated January 18, 2018 further notifying the Organization that commencing approximately February 15, 2018, the Carrier would be performing bridge maintenance using contractors for approximately four weeks on the Artesia Subdivision utilizing approximately ten contractors with the further reasons for doing so (Carrier Exhibit A at 12):
“There are no furloughed employees on the KCS and all other employees are engaged in other on-going projects. The Carrier does not have the equipment or available manpower to perform these projects in a timely manner.”
Standing alone, the annual notification to the Organization is insufficient for the Carrier to meet its notification obligations because it is too broad and generic to
serve the purpose of the required notice. Third Division Award 43834. See also, Third Division Award 44709:
“(1) Standing alone, annual notice given by the Carrier to the Organization of its intent to subcontract work which just lists contractors and types of work to be performed is insufficient notification to the Organization.”
However, as governed by Third Division Award 43834 and as found in Third Division Award 44709:
“(2) The Carrier’s giving supplemental notification to the Organization of the type of work, the type of equipment, the length of the project, its projected start date, and its location along with stated reasons for subcontracting satisfies the Carrier’s notification obligation.”
Based on the above and given the Carrier’s January 18, 2018 supplemental notification further detailing its prior notice dated December 15, 2017, the Carrier’s notification obligations have been met requiring that the claim be 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 6th day of May 2022.