Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45169 Docket No. MW-43811
24-3-NRAB-00003-230205
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
(BNSF Railway Corporation STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces to perform Maintenance of Way and Structures Department work (unloading switches and panels) at Union Yard, Midway Subdivision on the Twin Cities Division on February 26 and 27, 2015 (System File T-D-4667-M/11-15-0376 BNR).
The Agreement was further violated when the Carrier failed to comply with the advance notification and conference provisions and failed to make a good-faith attempt to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces or reach an understanding concerning such contracting as required by the Note to Rule 55 and Appendix Y.
As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants K. Gaylor, J. Aiton, C. Lenke, J. Derungs, T. Konz and B. Xiong shall now each receive twenty-four (24) hours= overtime at their respective rates of pay.”
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 hold seniority within various classifications of the Carrier’s Maintenance of Way and Structures Department, including foreman, machine operator, truck driver, and laborer.
On March 5, 2013, the Carrier and the Organization entered into a Settlement Agreement (“the Summit Agreement”) one provision of which reads:
E. Mobile Track Construction Gangs that perform the work of track construction, track and switch panel installation and grade crossing installation covered under this Agreement are added to coverage of Section 12 (RSG’s) of the BNSF Addendum to the 2012 National Agreement, and the parties further agree:
The Organization agrees to withdraw all existing track and switch panel installation claims appealed on or before August 31, 2012. The Organization also agrees that during 2013 it will not file new claims if a contractor performs the type of work performed by a Section 12 Track Construction Gang on a seniority district where a Section 12 Track Construction Gang is simultaneously working. In return, BNSF agrees that it will not perform track construction or track, switch and crossing installation “blitzes” with contractors on seniority districts where Section 12 Track Construction Gangs are working. If BNSF acts in good faith relative to this provision in 2013, the Organization will agree to extend the claims prohibition of this provision through 2014. If BNSF similarly acts in good faith during 2014, the Organization will agree to extend the claims prohibition of this provision through 2015.
Thereafter, the parties agreed to extend the claims prohibition into 2015.
On September 24, and December 19, 2014, the Carrier notified the Organization of its intention to utilize outside contractors on a large-scale capacity expansion project on the Midway Subdivision. The Carrier notified the Organization that it did not have adequate equipment or forces to undertake a project of this size.
On February 26 and 27, 2015, the Carrier assigned outside forces to unload switches and panels at Union Yard, Midway Subdivision on the Twin Cities Division. A foreman and two laborers utilized two machine operators to work an off track crane and one truck with an operator in performance of said work.
In a letter dated April 23, 2015, the Organization filed a claim on behalf of the Claimants. The Carrier denied the claim in a letter dated June 23, 2015. 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 work of unloading switches and panels is typical Maintenance of Way (“MOW”) work, which has customarily and historically been assigned to and performed by the Carrier’s MOW forces and is contractually reserved to them under Rules 1, 2, 5, 6, 55 and the Note to Rule 55.
The Organization further contends that the Carrier failed to comply with the Note to Rule 55 and Appendix Y by failing to provide proper advance notification of its plan to use outside forces and failing to make good faith efforts to reduce the incidence of subcontracting. The Organization contends that the Carrier’s letters dated September 24, 2014, and December 19, 2014, did not meet the Agreement requirements and entitles the Organization to a fully sustained Award.
The Organization contends that the Summit Agreement is inapplicable to this work and did not bar the Organization from filing this claim. The Organization concedes that a Carrier track construction gang was also working on the seniority district but contends that the disputed work was not track construction, but track maintenance, which is not covered by the Summit Agreement. The Organization contends that the work performed by the outside contractors was regular, routine track maintenance.
The Carrier does not deny that the work took place as alleged but contends that it was performed as a portion of the capacity expansion projects that have been an ongoing practice for many years. The Carrier contends that on-property precedent has established that its forces do not perform new construction projects of
this magnitude and type. Further, numerous past on‐property awards have recognized that the Carrier is not obligated to piecemeal out small portions of more complex projects simply because its own employes might occasionally perform some of the work.
The Carrier further contends that the Organization has failed to prove that the work was Scope-covered, in that it has failed to show that the work in question has been exclusively or customarily performed by MOW employes.
The Carrier contends that it does not have adequate equipment or forces to undertake such a massive project and it is simply not sensible to expect the railroad industry to maintain a huge workforce to handle these periodic large‐magnitude projects, only to lay off employees until the next project comes along. So in advance of this multi‐faceted project, the Organization was sent two contracting notices in accordance with the Note to Rule 55 of the Labor Agreement.
The Carrier contends that the Organization agreed in the March 5, 2013, Summit Agreement, that it would not file claims for contractors performing track construction work if a Track Construction Gang was working on that Seniority District. There is no dispute that during the claimed time, a Track Construction Gang was working in the Midway Subdivision on the Twin Cities Division. The Organization’s claim should be dismissed.
The first issue that must be addressed is the Carrier’s argument that this claim should be denied due to the parties’ March 5, 2013, Summit Agreement. The Organization argues that the agreement does not bar this claim, because the claimed work is track maintenance work, rather than new track construction work. During the on-property handling, the Organization argued that the Carrier was performing a “blitz” and thus the March 5, 2013 Summit Agreement did not apply. However, the record does not support a finding that the Carrier was conducting a blitz. The Board also finds that the Agreement does not distinguish between new track construction and track maintenance.
The Organization agreed not to file new claims “if a contractor performs the type of work performed by a Section 12 Track Construction Gang on a seniority district where a Section 12 Track Construction Gang is simultaneously working.” On its face, this language does not differentiate between new construction and maintenance of tracks, so long as it is the type of work performed by a Section 12 Track Construction Gang. The Organization has presented no evidence that the type
of work performed by a Section 12 Track Construction Gang does not include track maintenance. In accordance with the Summit Agreement, this claim should not have been filed and will be dismissed.
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 22nd day of February 2024.