PUBLIC LAW BOARD NO. 7101
(Brotherhood of Maintenance of Way Employes
PARTIES TO THE DISPUTE:
(and
(
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(I) The Agreement was violated when the Carrier assigned outside
forces (Peterson Contractors, Inc.) to perform Maintenance of
Way and Structures Department work (fencing, grading, subballast placement and other incidental work in connection with
the construction of additional yard tracks) on the Fairmont
Subdivision at Mile Post 0.6 near Mason City, Iowa beginning on
September 7, 2004 and continuing, instead of Seniority District T2 employes J. Coolican, M. Kath, D. Bohl and R. Buol (system File
2RM-9606711410384 CNW).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper advance notice of its
intent to contract out the above-referenced work or make a goodfaith attempt to reach an understanding concerning such
contracting as required by Rule 1(b).
(3) As a consequence of the violation referred to in Parts (1) and/or
(2) above, Claimants J. Coolican, M. Kath, D. Bohl and R. Buot
shall now each be compensated at their respective and applicable
rates of pay for all straight time and overtime hours expended by
the outside forces in the performance of the aforesaid work
beginning September 7, 2004 and continuing.
The Carrier has declined this claim."
Page 2 PLB 7101
Case No. 12
FINDINGS:
The Board, upon consideration of the entire record and all of the evidence,
rinds that the parties are Carrier and Employee within the meaning of the Railway
Labor Act, as amended; that this Board is duly constituted by Agreement; this
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
Claimant J. P. Coolican has established and holds seniority in the
Maintenance of Way and Structures Department in the Track Subdepartment on
Seniority District T-2 as a foreman. Claimants M. C. Kath, D. L. Bohn and R. L.
Buol have established and hold seniority in the Maintenance of Way and Structures
Department in the Track Subdepartment on Seniority District T-2 as machine
operators (M. O. Common). Claimants were assigned and working their respective
positions on the dates involved in this dispute.
Beginning on September 7, 2004 and continuing, the Carrier allegedly
assigned Peterson Contractors, Inc. (PCI) to perform alleged basic fundamental
Maintenance of Way and Structures Department work in the yard at Mason City,
Iowa on the Fairmont Subdivision near Mile Post (1.6. Specifically, the work
entailed fencing, grading, sub-ballast placement and other incidental work in
connection with the construction of additional yard tracks. The Contractor
assigned one Foreman and three Machine Operators to this project, allegedly
working 12 hours per day Monday through Thursday, and 8 hours on Friday. The
employees were using a Track Hoe, 1-2 dozers and 1-2 trucks as needed. The
operators used various pieces of equipment.
The Organization contends that the Agreement was violated when the
Carrier assigned PCI the work of fencing, grading, sub-ballast placement and other
incidental work in connection with the construction of additional yard tracks at
Mason City, Iowa on the Fairmont Subdivision near Mile Post 0.6. The
Organization claims that it was improper for the Carrier to contract out the abovementioned work, which is work that is properly reserved to the Organization.
According to the Organization, the Carrier had customarily assigned work of
this nature to the Carrier's Maintenance of Way Employees. The Organization
further claims that the work in question is consistent with the Scope Rule.
According to the Organization, the Carrier's Maintenance of Way Employees were
fully qualified and capable of performing the designated work. The work
performed by PCI falls within the jurisdiction of the Organization and therefore
Claimants should have performed said work. The Organization argues that because
Claimants were denied the opportunity to perform the relevant work, Claimants
should be compensated for the lost work opportunities.
Page 3 PLB 7101
Case No. 12
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier contends that the work contracted
out was that of fencing, grading, sub-ballast placement and other incidental work in
connection with the construction of additional yard tracks, which the Carrier claims
does not belong to the Carrier's BM,WE represented Employees under either the
express language of the Scope Rule or any binding past practice. In addition, the
Carrier argues that the Organization incorrectly asserted the instant Claim under
the CNW BMWE Agreement whereas it should have been asserted under the UP
BMWE Agreement. Because it was improperly asserted, the Carrier claims that the
instant Claim should be voided.
We first note that at the Arbitration Hearing, the parties stipulated that the
Notice issue was not in question. Therefore, we find that we need not reach that
issue.
Next, we reach the question of whether the work in question has been
traditionally and customarily performed by the Organization. In Special Board of
Adjustment No. 1016, Award 150, the Board framed the scope issue as follows:
"In disputes of this kind, the threshold question for our analysis is
that of scope coverage. There are generally two means of establishing
scope coverage. The first is by citing language in the applicable scope
rule that reserves the work in disputes to the Organization
represented employees. The second method is required when the
language of the scope rule is general. In that event, the Organization
must shoulder the burden of proof to show that the employees it
represents have customarily, traditionally and historically performed
the disputed work. It is well settled that exclusivity of past
performance is not required in order to establish scope coverage vis-avis an outside contractor."
In the instant case, we have carefully reviewed all evidence regarding the
question of whether the Organization has proven that the work involved belongs to
the Organization. First, we note that the work of fencing, grading, sub-ballast
placement and other incidental work in connection with the construction of
additional yard tracks is not specifically identifed in the Scope Rule.
We next turn to whether there is sufficient evidence for the Organization to
have proven that it has customarily, traditionally and historically performed the
disputed work. In the instant case, while the Organization has presented some
evidence to show that the work in question belongs to the Organization, that
evidence is insufficient for the Organization to meet its burden of proof. See Public
Law Board No. 6537 above. See Also Third Division Award 37365 (Goldstein),
Page 4 PLB 7101
Case No. 12
Public Law Board No. 4402, Award No. 20, Case No. 20, Award No. 28, Case No. 28;
Public Law Board 6537, Award No. 1.
Based on the evidence in this matter as well as the above-cited precedent, we
cannot find that the work of fencing, grading, sub-ballast placement and other
incidental work in connection with the construction of additional yard tracks is
definitively encompassed within the plain language of the Scope Rule or that the
Organization has been able to prove that this work has historically and traditionally
been performed by members of the Organization.
Thus, having determined that the Notice was proper and that the work was
not within.the scope of the Organization, we find that the Organization has not met
its burden of proof and the Claim is therefore denied.
The Claim is denied.
Page 5 PLB7101
Case No. 12
AWARD
Claim denied.
Steven
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Steven M. Bierig
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Doming Ring Roy binson
Carrier Member Organ'
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Dated at Chicago, Illinois this 14
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