Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45249 Docket No. MW-47435
24-3-NRAB-00003-220596
The Third Division consisted of the regular members and in addition Referee George Edward Larney when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
(Soo Line Railroad Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces (Stennes Excavating ) to perform routine Maintenance of Way and Structures Department work (including but not limited to assisting with the building of diamond renewal panels, the removal/installation of track and diamond panels, grading, the removal of track spoils and the performance of ballast work associated with diamond renewals) in the vicinity of Mile Post 214.4 and 214.5 on the Detroit Lakes Subdivision on October 26, 27 and 28, 2020 (System File C-97-20-080-57/2020-00019229 SOO).
The Agreement was further violated when the Carrier failed to furnish the General Chairperson with proper advance notice of its intent to contract out said work and failed to enter into good-faith discussions to reduce the use of contractors and increase the use of Maintenance of Way forces as required by Rule 1 and Appendix O.
As a consequence of the violations referred to in Parts (1) and (2) above, Claimants M. Evje, C. Winkler, M. Watercott, Z. Weigel,
S. Lundon, M. Safer and A. Haverkamp shall * * * be allowed a proportionate share EACH of one hundred seventy-one and one- half (171-1/2) hours at their applicable straight time and/or overtime rates of pay, along with all benefits and work opportunities on October 26, 27, and 28, 2020 (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.
At the outset, the Board notes the instant claim is indicative of almost every contracting-out of bargaining unit work dispute that comes before us where the Parties advance the identical meritorious arguments in favor of their respective positions. The Organization basically argues that the work in question contractually falls within the scope of work that belongs and is reserved to its members and asserts that the work in question has customarily, historically and traditionally been performed by its members. The Carrier counters said Organization arguments by asserting it does not own the necessary “specialized” equipment required to accomplish the work in question and is therefore more economically sound to use a contractor that possesses the required equipment as opposed to purchasing the equipment and too, the work skills necessary to perform the work in question falls outside the work skill set belonging to the bargaining unit employees whereas, the work-force employees of the contractor possess the needed work skills required to perform the work in question. Arguments involving technical violations of the Collective Bargaining Agreement generally asserted by the Organization may be advanced in addition to those arguments of merit such as, for example, as here, an allegation by the Organization that Carrier failed to provide it with the required notification in advance of its intention to contract out work belonging to its bargaining unit employees.
In the instant case, as noted in item (2) set forth in the above Statement of Claim, the Organization alleges Carrier committed the technical contract violation of failing to properly notify it in advance of its intention to contract out the work in question as referenced in item (1) of the Statement of Claim and too, alleges a second technical violation of the Controlling Agreement by failing to enter into good-faith discussions to
reduce the use of contractors in favor of increasing the use of Maintenance of Way work-force employees. The Board is of the view these two allegations are internally contradictory with each other in that if Carrier, in fact, failed to provide the Organization with a notice it intended to undertake a project of work utilizing contractor employees there would be no need to enter into “good faith negotiations” to address the issues relevant to the project that require resolution before commencing the work in question.
Contrary to the Organization’s assertion that Carrier failed to notify it of its intention to undertake the subject work project using contractor employees to perform the work, the record evidence clearly shows Carrier timely issued to the Organization a pre-contracting out notice, pursuant to the applicable provisions of the Scope Rule, Rule 1 of the Controlling Agreement, that set forth a comprehensive description of both the subject work to be performed by contractor employees, the specialized equipment to be used by them to accomplish the work, and the geographic sites where the specifically described work would be performed accompanied by dates the work would occur at each location (Notice 2020-0009). Subsequent to the issuance of this notice, the Parties conferenced the entire scope of the work project on February 5, 2020, indicating the project would commence on February 12, 2020 and be completed by December 31. 2020. Specifically, the portion of the work in question that is the subject of this claim was referenced on page 3 of Notice 2020-0009. As noted in the Statement of Claim above, the claimed work was performed by contractor employees on the Detroit Lakes Subdivision in the vicinity of Mile Post 214.4 and 214.5 on three (3) consecutive dates of October 26, 27 and 28, 2020.
What is known by the record evidence before us is, that the Parties were unable to reach mutual agreement at the conference held to discuss the entirety of the work project intended by Carrier to be performed by employees of the contracting out Company hired to accomplish the work in question as set forth in the pre-contracting out notice. Such knowledge effectively disputes and disposes of that part of the claim as valid, that Carrier violated the Controlling Agreement by failing to provide the Organization timely notification of its intention to contract out the work in question. The Board presumes that the arguments asserted by both Parties at the conference that resulted in a stalemate are the identical arguments made before us in seeking a resolution of this impasse by our decision-making authority. However, we have determined upon a thorough review of the record that, in addition to the Organization’s spurious claim Carrier did not provide it with timely notice of its intention to contract out the work in question, the Organization further failed to provide substantive evidence sufficient to support its other positions. To wit, the Organization failed to
provide the necessary proof that specialized equipment was not needed to accomplish the work in question as argued by the Carrier nor to counter Carrier’s position the skills necessary to accomplish the work in question exceeded the skills and knowledge of its own workforce employees. Accordingly, based on the foregoing findings, we rule to deny the claim.
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 March 2024.