Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45126 Docket No. MW-42835
24-3-NRAB-00003-220897
The Third Division consisted of the regular members and in addition Referee Sarah Miller Espinosa 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 outside forces (Hulcher, Inc.) to perform Maintenance of Way and Structures Department work (operate vacuum truck toclean tracks) at various locations in and around Valley Park Yard in Shakopee, Minnesota on July 29, 31 and August 1, 2 and 3, 2013 (System File B-1301C-157/1591873 CNW).
The Agreement was violated when the Carrier assigned outside forces (Hulcher, Inc.) to perform Maintenance of Way and Structures Department work (operate vacuum truck to clean tracks) at various locations in the Ottawa, Minnesota siding and mainline as well as the ‘New Construction’ and ‘New’ yards in Mankato, Minnesota on September 3, 4, 5 and 6, 2013 (System File B-1301C-168/1594536).
The Agreement was further violated when the Carrier failed to furnish the General Chairman with proper advance written notice of its intent to contract out the work referred to in Parts (1) and/or (2) above or make a good-faith attempt to reach an understanding concerning such contracting as required by Rule 1 and Appendix ‘15’.
As a consequence of the violations referred to in Parts (1) and/or (3) above, Claimants A. Stenen and M. Ganzer shall now ‘*** each be compensated for an equal share of fifty five and one half (55.5) hours of straight time and forty four and one half (44.5) hours of overtime, that the contractor’s forces spent performing their Agreement covered work, at the applicable rate of pay.’
As a consequence of the violations referred to in Parts (2) and/or (3) above, Claimants D. Brooks and S. Pettis shall now ‘*** each be compensated for an equal share of fifty six (56) hours of straight time and three (3) hours of overtime, that the contractor’s forces spent performing their Agreement covered work, at the applicable rate of pay.’ (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.
This claim was made on behalf of the named Claimants. At the time of the dispute, the Claimants established and held seniority within various classifications.
In this case, on October 10, 2012, the Carrier provided notice of its intent to contract work “at various locations on the Twin Cities Service Unit”. The notice identified the specific work as “providing fully fueled, operated and maintained Vac truck(s) for cleanup of spills, debris and or other materials commencing November 1, 2012 thru December 31, 2013.” The work in question occurred on July 29 and 31 and
August 1, 2, and 3, 2013.
Rule 1B is central to the determination of this claim. Rule 1B states:
Rule 1 – SCOPE
Rule 1B is central to the determination of this claim. Rule 1B states in relevant
part:
Rule 1 – SCOPE
B. Employees included within the scope of this Agreement in the Maintenance of Way and Structures Department shall perform all work in connection with construction, maintenance, repair and dismantling of tracks, structures and other facilities used in the operation of the Company in the performance of common carrier service on the operating property. This paragraph does not pertain to the abandonment of lines authorized by the Interstate Commerce Commission.
By agreement between the Company and the General Chairman work as described in the preceding paragraph, which is customarily performed by employees described herein, may be let to contractors and be performed by contract’s forces. However, work may only be contracted provided that special skills not possessed by the Company’s Employees, special equipment now owned by the Company, or special material available only when applied or installed through supplier, are required, or unless work is such that the Company is not adequately equipped to handle the work, or, time requirements must be met which are beyond the capabilities of Company forces to meet.
In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the Brotherhood in writing as far in far advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto, except in “emergency time requirements” cases. If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the Company shall promptly meet with him for that purpose. The Company and the Brotherhood representatives shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is
reached, the Company may nevertheless proceed with said contracting and the Brotherhood may file and progress claims in connection therewith.
In addition to the Rules cited by the Organization, the Berge-Hopkins letter, which is located at Appendix 15 in the Agreement, is also referenced by the Organization in support of its position.
In the instant matter, the Organization established that the work at issue, track cleaning, is within the scope of Rule 1. As stated in Third Division Award 43737 (Referee Jeanne M. Vonhof), this Board held:
The Carrier contends that the work also has been performed by outside forces in the past, and therefore the Organization has not established an exclusive claim to the work. However, if the work comes within the scope of Rule 1, the Organization need not establish that it has performed the work exclusively in the past. Exclusivity is not a necessary element to be demonstrated by the organization in contracting cases. Third Division Award Nos. 32862, 40078; PLB 7096, Aw. No. 1.
Further, while the Organization argues no proper notice was provided, the record reflects that Notice was timely in that it was provided more than 15 days in advance of the date of the intended contracting transaction. Specifically, notice was provided on October 10, 2012 and the work in question was performed on and between July 29 and August 3, 2013. The notice adequately identified the work to be contracted out.
The question is, therefore, whether the work met one of the exceptions to permit contracted work as delineated in Rule 1B. According to Rule 1B:
work may only be contracted provided that special skills not possessed by the Company’s Employees, special equipment not owned by the Company, or special material available only when applied or installed through supplier, are required, or unless is such that the Company is not adequately equipped to handle the work, or, time requirements must be met which are beyond the capabilities of Company forces to meet.
The Organization argues that the Carrier possessed the same or similar model of vacuum truck that could have been used to perform track cleaning but chose to
instead contract out the work. The Organization further argues that the Carrier failed to purchase or lease a vacuum truck, if needed, to perform the work. The Carrier argues that it was not equipped with a specialized vacuum truck and that such specialized truck was needed to perform the work in question. The Carrier asserts that the vacuum truck the Organization references in its argument was not located within the service unit and that the Carrier does not own a vacuum truck on the Twin City Services Unit. The Carrier further argues it is under no obligation to purchase or lease specialized equipment.
The Carrier has the burden to establish an exception under Rule 1B. After a careful review of the record, the Board is persuaded that the Carrier met its burden. That is, the vacuum truck is specialized equipment that the Carrier did not own within the service area. The Carrier demonstrated that the vacuum truck cited by the Organization was being utilized elsewhere (not within the Twin Cities Service Unit). Therefore, the Carrier was not adequately equipped to handle the work as it did not have a vacuum truck available to perform the work in question. Further, the Agreement does not require the Carrier to purchase or lease specialized equipment. As such, the circumstances at issue here fall within the Rule 1B special equipment exception.
Thus, the claim is 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 28th day of November 2023.
AWARD 45125, DOCKET MW-42833 AWARD 45126, DOCKET MW-42835 AWARD 45128, DOCKET MW-42855 AWARD 45129, DOCKET MW-42856 AWARD 45130, DOCKET MW-42857 AWARD 45132, DOCKET MW-42860 AWARD 45135, DOCKET MW-42864 AWARD 45137, DOCKET MW-42893 AWARD 45139, DOCKET MW-42903 AWARD 45141, DOCKET MW-42925
(Referee S. Espinosa)
I must dissent to the Majority’s findings in these cases. Specifically, the Majority improperly held that the Carrier’s notification letters complied with the terms of Rule 1B and Appendix 15. Rule 1 requires the Carrier to notify the General Chairman not less than fifteen (15) days in advance of a contracting transaction. Moreover, the text of Rule 1 directs the parties to (See Appendix ‘15’), which clarifies what must be included within any notification pursuant to Rule 1. Appendix 15 clearly mandates that such “*** notices shall identify the work to be contracted and the reasons therefor.” To state it more concisely, Rule 1 provides the general language that the Carrier shall notify the General Chairman. However, Appendix 15 specifically clarifies the requirements of such a notification. This same principle of contract interpretation was espoused by the Carrier to this Board and as stated above, it must be applied consistently. Accordingly, any notification that fails to identify the work to be contracted out and/or the reason therefor, is in direct violation of the Agreement. Awards 42419, 42423, 42435, 42438, 43577, 43578, 43580, 43592 already hold to this effect and should have been followed in these cases.
I must also note that this list was one (1) of three (3) virtually identical lists argued at the NRAB. Notably, the other two (2) deadlock lists fell directly inline with the precedent cited above. See Awards 44992, 44993, 44994, 44995, 44996, 44997, 44998, 44999, 45000, 45003, 45004,
45006, 45028, 45029, 45030, 45031, 45032, 45034, 45035, 45036, 45037, 45038, 45039, 45040,
45041, 45042, 42043 and 45044. I acknowledge that these awards were not provided to the Majority or the Deadlock Neutral in these cases at the hearing as they were not yet rendered. Nonetheless, they are indicative of the recent arbitral precedent on this property.
For these reasons, I must respectfully dissent.
Respectfully Submitted,
Zachary C. Voegel Labor Member