Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45033 Docket No. MW-42926
23-3-NRAB-00003-220905
The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
(Union Pacific Railroad Company (former Chicago and North Western Transportation Company)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned or otherwise allowed outside forces (Railworks) to perform Maintenance of Way and Structures Department work (installation of cross ties and related work) between Mile Posts 90.5 and 87.7 on the Beloit Industrial lead on the Harvard Subdivision beginning on October 30, 2013 through November 13, 2013 (System File B 1301C-180/1595885 CNW).
The Agreement was further violated when the Carrier failed to furnish the General Chairman with advance notice of its intent to contract out the above-referenced work and when it failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the use of its Maintenance of Way forces as required by Rule 1 and Appendix ‘15’.
As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants D. Kopp, J. Edges, B. Galles, D. Braaten and S. Lehmann shall each ‘... be compensated for and (sic) equal share of four hundred and eighty (480) man/hours that the employees of the contractor worked, at the applicable rates of pay.’ (Emphasis in original).”
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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.
The Claimants have established and maintain seniority in their respective classes of the Carrier’s Track Subdepartment of Maintenance of Way and Structures Department. On the dates relevant to this dispute, they were regularly assigned and working their respective positions on Seniority District T-8.
Beginning on October 30, 2013, and continuing through November 13, 2013, Railworks installed cross ties and performed related work between Mile Posts 90.5 and 87.7 on the Beloit Industrial lead on the Harvard Subdivision. Up to six contractor’s employees worked a total of 480 hours utilizing hand tools, a backhoe and other equipment.
In a letter dated December 3, 2013, the Organization filed a claim on behalf of the Claimants. The Carrier denied the claim in a letter dated January 9, 2014. Following discussion of this dispute in conference, the positions of the parties remained unchanged, and this dispute is now properly before the Board for adjudication.
The Organization contends that the claimed work is reserved to the BMWED forces by virtue of the parties’ Agreement and the December 11, 1981 Letter of Agreement. In addition, the Organization contends that the Carrier’s BMWED forces have customarily and traditionally performed this very work and have even done so using the same equipment used by the contractor. The Organization contends that it also presented a statement in support of the BMWED’s customary and historical performance of the work.
The Organization contends that it is well-established that the Carrier must set
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forth in the contracting notice the justification for its desire to contract out scope- covered work. Here, the Carrier failed to provide the Organization with advance notice of its contracting out, and thus failed to identify any exceptions that would justify its decision. The Organization contends that the Carrier failed to comply with its obligations to provide proper advance notice and failed to hold a good-faith discussion regarding this specific instance of contracting out.
The Organization contends that the Carrier has failed to comply with its obligation to make good-faith efforts to increase the use of BMWED employes instead of contracting out work. The Organization contends that the Carrier’s obligation includes proper staffing or scheduling in an attempt to utilize its own forces.
The Organization contends that the Carrier has failed to present sufficient evidence to support its contention that the work in question was not connected to the Carrier and thus did not fall under the scope of the Agreement or the provisions governing contracting out BMWED work. The Organization contends that there is no question that a contractor performed Scope-covered work on Carrier-owned and operated tracks. Therefore, the Carrier received the benefit of the work performed by the contractors.
The Organization contends that the Claimants must be fully compensated for the dates listed in the claim. The Organization contends that the Claimants were available to perform whatever work they were assigned by the Carrier, and could have been assigned to this work. The Organization contends that the Claimants are entitled to an equal share of all hours that the contractors’ employees performed the disputed work, at the applicable rates of pay, in order to compensate the Claimants and to protect the integrity of the Agreement, citing Third Division Awards 37314, 35735, 35736 and 36854, and Awards 1 and 14 of PLB 7096.
The Organization contends that the Carrier’s December 13, 2014 post conference letter constituted an inappropriate attempt to add further argument and evidence into the formal record. See, Rule 21(c) of the Agreement. The Organization’s receipt of this letter on December 18, 2014, left it with only a few days to respond to the various arguments and evidence contained therein. The Organization contends that Board precedent makes clear that a party may not wait until the last moment to augment the record, depriving the other party of a reasonable opportunity to respond.
The Carrier contends that the Organization has failed to prove that the Carrier
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violated the parties’ Agreement. The Carrier contends that the record shows that the Carrier did not request or hire the contractor to perform the claimed work, did not control the contract forces, did not pay for the work, was not the primary beneficiary of the work, and did not have sole maintenance responsibilities for the industry track area. The Carrier contends that the record firmly established that the Canadian Pacific (“CP”) has a business relationship with the industry location, and it was the CP, not the Carrier, who utilized a contractor to perform the claimed work.
The Carrier contends that this dispute does not trigger the provisions of the parties’ Agreement because the CP negotiated the work for the industry, was involved with the financial transaction, and coordinated with Railworks in the performance of the industry work. The on-property documentation establishes that the Carrier did not have an agreement in place with the contractor.
The Carrier contends that it presented an unrefuted statement that the work was requested, controlled, and paid for by the CP Railroad. The Carrier contends that it found no evidence that it had paid for, or was even aware of, the work being performed. The Carrier contends that the lone statement entered into the record by the Organization was not submitted with its initial claim and simply addressed the work being performed, and does not address who instigated, controlled, or paid for the work. The Organization has failed to prove its case. The Carrier contends that at most, the Organization has presented an irreconcilable dispute in facts.
The Carrier contends that its December 13, 2014, response was written and sent before the Organization advanced its claim to the Third Division. The Carrier contends that the record was still open, and nothing prevented the Organization from requesting an extension to respond to the letter.
The Carrier contends that in the unlikely event that the claim is sustained, only those Claimants who actually suffered lost compensation should be compensated. The Carrier contends that the Claimants worked all of their regularly assigned hours during the period in question, including overtime and paid vacation time. They are not entitled to any monetary relief, citing Third Division Awards 40810 and 31284.
There is no dispute that the claimed work, installation of cross ties and related work, was performed on the Carrier’s property by Railworks, an outside contractor. There is also no question that the Carrier provided no advanced notice of the contracting to the Organization.
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However, before it can be determined whether the work is covered by the Scope Rule in the parties’ Agreement, it must be shown to have been done at the behest of the Carrier. “As noted in Third Division Award 31234, the Board has long held that where work is not performed at the Carrier’s instigation, under its control, at its expense or exclusively for its benefit, contracting is not a violation of the Scope Rule of the Agreement.” Third Division Award 37143.
The Carrier asserts that the Organization has failed to prove that the work in question was performed at its instigation, under its control, at its expense, or exclusively for its benefit. The Carrier argues that it cannot locate any records showing that it had any contract with Railworks for work done at this location or at this time. In response, the Organization argues that it strains credulity to believe that the Carrier was unaware of the work being performed on its own property. However, even if the Carrier were aware, simple knowledge falls short of “instigation, control, expense, or benefit.” Under the circumstances, we find that because the work was not shown to be covered by the Scope Rule, no notice was required.
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 7th day of September 2023.