Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44877 Docket No. MW-46455
23-3-NRAB-00003-210309
The Third Division consisted of the regular members and in addition Referee Michael G. Whelan when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
(National Railroad Passenger Corporation (Amtrak) - (other than Northeast Corridor)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces (Railworks) to perform Maintenance of Way work (track work) at the Beech Grove Maintenance Facility in Beech Grove, Indiana beginning on August 5, 2019 and continuing (System File D19A24-241/BMWE-157398-TC NRP).
The Agreement was further violated when the Carrier failed to comply with the advance notification and conference provisions or reach an understanding concerning such contracting as required by Rule 24.
As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants C. Douglas, T. Shipley, B. Gross, J. Jozsa, A. Bean, C. Shorter and J. Chenoweth shall ‘… be compensated for all straight and overtime hours worked by contractor Railworks beginning August 5, 2019 and subsequent thereto to be divided equally and proportionally among Claimants at their respective straight and overtime rates of pay. ***’””
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form 1 Award No. 44877
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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.
The Organization contends that the Carrier failed to provide advance notice to the General Chairman in writing of its intent to contract out track work at the Beech Grove Maintenance Facility as required by Rule 24. Although the record is clear that the Carrier provided advance notice of its intent to contract the track work at the Facility and that discussions were held between the Carrier and the Organization about that work, the Organization argues that the Carrier was not acting in good faith during those discussions because it had an obligation to maintain a sufficient workforce to do this work, noting that there was a much larger BMWE-represented workforce at the Facility 24 years ago.
The issue of whether the Carrier has an obligation to restore the size of its workforce to a prior level before it can contract work has previously been addressed between the parties. In Third Division Award 40235, the Board held,
[u]nfortunately, for the Organization, the Agreement at issue in this case does not require the Carrier to restore the size of its workforce to a prior level before it may contact out to meet needs raised by the current level of its forces. Rather, it merely requires that the Carrier not contract out if doing so will result in the layoff of any current employees.
There is no dispute that no current employees were laid off in the instant case. Under these circumstances, the Organization has not met its burden to prove that the Carrier was not acting in good faith during contracting out discussions simply because the Carrier failed to restore its workforce to previous levels before it contracted out the work.
The Organization also contends that Rule 1—the Scope Rule—establishes that all work generally recognized as work ordinarily performed by the specified employees and all work that has been traditionally performed by those employees in the past is included within the scope of the Agreement. Rule 1 provides, in relevant part, “[w]hile
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it is not the intent of the parties to either diminish or enlarge the work being performed in a territory under this Agreement, the work generally recognized as work ordinarily performed by the Brotherhood of Maintenance of Way Employees as it has been performed traditionally in the past in that territory will continue to be performed by those employees.” Tie and timber work is ordinarily and customarily performed by BMWE-represented employees, but, by its terms, the Scope Rule applies to work performed in a “territory.”
In contracting cases, the Organization bears the burden to establish that the disputed work is scope covered. Third Division Awards 41159 and 36208. There is precedent on the property that the Carrier does not violate the Scope Rule when it contracts out projects of a larger magnitude than have ordinary and customarily been performed by Carrier forces at that location. Third Division Award 36050. This Award is in keeping with other precedent involving the Organization and other carriers. See Third Division Awards 44416, 43720, 42535, and 40224. Thus, in this case, the Organization has the burden to establish that BMWE-represented forces at the Beech Grove Maintenance Facility ordinarily and customarily handle large tie and timber replacement projects involving the replacement of 3200 ties and 570 switch timbers— for a total project scope of 8,000 linear feet of track—and requiring the use of equipment the Carrier does not own.
The evidence establishes that the Beech Grove Maintenance Facility is used for the purpose of transporting trains for mechanical repairs and overhauls but is not part of a maintenance-of-way base. It has a staff of seven BMWE-represented employees who perform normal building and track maintenance that ordinarily and customarily occurs at this facility. The Organization has presented evidence that it had performed tie and timber work in the past, including: 1) 230 feet of track replacement; 2) 95 feet of track ties; and 3) 190 feet of track within the diesel shop. This previous work was of a significantly smaller scale than the project at issue. Based on this record, the Organization has not established that the BMWE-represented employees at this Facility had completed a project of the magnitude of the one at issue or that the Facility had the necessary equipment to complete the project. Thus, we conclude that the Organization has failed to sustain its burden of proving that the tie and timber work at issue is scope- covered work, as defined by Rule 1.
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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 10th day of March 2023.