Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45173 Docket No. MW-43854
24-3-NRAB-00003-230209
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 (Patrick Construction) to perform Maintenance of Way and Structures Department work (installing trench drains and placing rip-rap for bank stabilization) between Mile Post 33.1 to Mile Post
33.3 on the Forsyth Subdivision beginning on October 1, 2014 and continuing through November 7, 2014 (System File B-M-2804-E/11- 15-0176 BNR).
The Agreement was further violated when the Carrier failed to provide the General Chairman with advance notification of its intent to contract out the aforesaid work or to make a good-faith effort to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces as required by Rule 55 and Appendix Y.
As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants D. Scherting, D. Petroff, M. Regalado, G. Oconnor,
J. Syslo, T. Rakes, J. Balajadia, D. Beer and C. Kemmis shall be compensated for two hundred twenty-six (226) hours at their straight time rates of pay and for one hundred eighty-six and three quarter (186.75) hours at their appropriate overtime rate 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 within the Carrier’s Maintenance of Way and Structures Department.
Beginning on October 1, 2014 and continuing through November 7, 2014, after the track between Mile Post 33.1 and 33.3 experienced a subgrade failure that caused it to be taken out of service, the Carrier assigned outside forces (Patrick Construction) to perform drainage and embankment stabilization work, specifically install drains, unload ballast, and place rip rap, between Mile Posts 33.1 and 33.3 on the Forsyth Subdivision of the Montana Division. The outside contractors utilized excavators, front end loaders, and dump trucks. According to the Carrier, forces from Patrick Construction assisted BMWED members in this work.
In a letter dated June 6, 2013, the Organization filed a claim on behalf of the Claimants. The Carrier denied the claim in a letter dated January 15, 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 installing trench drains and placing rip-rap for bank stabilization is typical Maintenance of Way (“MOW”) work and that such work has customarily and historically been assigned to and performed by the Carrier’s MOW forces and is contractually reserved to them. The Organization contends that the Carrier never denied the work occurred or that the work is customarily been performed by MOW forces.
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 notice 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 admitted that it did not notify the Organization of its intention to use outside contractors to perform this work.
The Organization contends that the Carrier failed to prove its affirmative defense that an emergency justified this action because it did not apply to the claimed work. The sub-grade conditions at the locations in dispute had been deteriorating for some time and the Carrier admitted that it ceased work on the alleged “emergency” due to winter weather, belying the Carrier’s assertion that the work was necessitated by an emergency.
The Carrier contends that the disputed work was part of its response to an emergency situation and thus, is expressly exempted from the contracting provisions in Rule 55. The Carrier contends that in an emergency situation, it is afforded wide latitude to restore service and need not give notice of its contracting out. The Carrier contends that the subgrade between Mile Posts 33.1 and 33.3 failed so much that it was not safe for trains to pass over that location, impacting vehicle traffic. The Carrier contends that it properly determined that outside forces were necessary to assist its forces in addressing the subgrade failure as quickly as possible.
The Carrier contends that the Organization’s proofs of the work performed and the hours worked by the contractors are unverified and unreliable. The proffered statements do not satisfy the Organization’s burden of proving its prima facie case.
The Carrier has asserted that it used outside forces to respond to an emergency situation. This Board has defined an emergency as “an unforeseen combination of circumstances that calls for immediate action.” Third Division Award 20527; Third Division Award 10965. This Board has also suggested that an event which is neither sudden nor unforeseeable, such as a heavy snowstorm, is not an emergency. However, where an emergency exists, this Board has held that a Carrier may take whatever action it deems appropriate to cope with its problems. Third Division Award 26677.
Here, the Organization does not take exception to the Carrier’s assertion that the subgrade failure required attention but argues that the stoppage of the work for cold weather showed that the work did not require immediate action. Because the claimed work was performed immediately upon the subgrade failure, the Board finds that the Carrier was responding to an emergency and enjoyed wide latitude to address
the problem. The interruption of work due to weather may have affected the emergency status of the later work, but that claim is not before this Board.
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.