PUBLIC LAW BOARD N0. 2206
PARTIES To DISPUTE:

 Brotherhood of Maintenance of Way Employes

 Burlington Northern, Inc.

 STATEMENT OF CLAIM:

 Claim of the System Committee of the Brotherhood that:



AWARD No. 56

 CASE N0. 57

 OPINION OF BOARD:

 The present dispute arose on September 1, 1978 when Carrier sent notification to the BMWE General Chairman, pursuant to the Note to Rule 55,

 as follows:

 "Mr. F. H. Funk, Gen. Churn. September 1, 1978

 Bro. of Maintenance of Way Employes
 500 Northwestern Federal Building
 Minneapolis, Minnesota 55403

 Dear Mr. Funk:

 File Mw-84(c)-Bridges

 As a result of damage caused by tug boat which struck the north side side of a downstream (west) protection pier and the deterioration of piling, it will be necessary to renew nose of the west protection pier to Bridge 10, Delta Junction, Washington.












The General Chairman responded by letter of September 7, 1978 declining to concur in the subcontracting and requesting a conference, which was held on October 10, 1978. Following that conference, Carrier advised of its intention to proceed with subcontracting of all the bridge repair work, with special reference to sheathing, as follows:







                                        AWD. 56 3


In the meantime, on approximately October 30, 1978 the subcontractor started removing the old caps, sheathing and piling; and then drove piles at the nost of the bridge. After the new piles were in place, the contractor's forces capped those piles and, during the period November 9, 1978 through
December 1, 1978 the contractor's forces placed braces, sheathed the piles -
 and built wooden walkway. Thereafter, the Vice General Chairman of the
 Organization filed the present claim on January 22, 1978, reading in pertinent
 part as follows:

    I am filing a Claim on behalf of Bruce Morton, foreman on the B. and B. Crew

    at Delt, Washington and the following members of his Crew; W. D. Jones,

    W. Kopp, M. L. Boland* C. Hester, E. Loomer and M. D. Jackson, Boom Truck

    Operator, when the B. N. Ins. , hereafter known as the Company contracted

    all of the work on Bridge 10, Delta Junction, Washington on or about

    October 30, 1978.


    The Company is in violation of the following but not limited to Rules of our effective Agreement dated May 1, 1971: Rule 1-C, 2-A, 5-E, 55-B, 55-C, 55-F, 55-G, 55-0, 55-P, and Notes to Rules 55, 69-A and 69-C.


    This Claim is for 8 hours straight time for each of the above named Employes at their respective rates of pay for the following days; November 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 27, 28, 29, 30, and December 1, 1978.


    The Contractor started work on this project about October 30, 1978 and removed the old caps and piling and drove piling. On November 9, 1978 the Contractor started placing braces and sheating and a wooden walk-way on this protection pier. In the past we have agreed to contracting the driving of the nilings and the placement of the caps and the Company has agreed to the Employes of the Company completing the rest of the work. The following are an example; Mr. T. C. D?Butts letter of October 30, 1974 on Bridge 368 at Seat.tlA, Mr. De Butts letter of April 14, 1975 on Burrand Inlet Dock at. Vancouver B. C., Mr. De Butts letter of July 25, 1975 on Bridge 12-A at Whitmarsh, Washinr,.ton, Mr. DeBuCLs letter of September 30, 1975 on Bridge 1?-A at Whitmarsh, Washington, Mr. De Butts lettar of April 6, 1976 on Rrictgp Vt, Delta Junct ion, Washington. There are many more similar to the ahnve ar~reed to projects which were agreed to and the Contractor sloes the work that requires the Flonting equipment,rtot available to the Company forces in the area, and Company forces finish the project.


    Due to the above mentioned past work, I see no reason why the Cor^npany had to Cnntrart the placing of braces, sheating and building of a walkway ( which Lite Company did not request) on Bridge 10 at Delta, Junction.

              _ _ ~c.3~zoE- ~ ~ 5(r,


The claim was denied at all levels of handling on the propert^, folloraing which it was appealed to this Board.
 At the outset we find unpersuasive Carrier's procedural arguments and rule that this claim properly'is before us for disposition. From the record it is plain that the work of bracing, sheathing, and walktoay construction on bridge protective piers has been reserved by custom, practice and tradition of exclusive system-wide performance by B&B forces over the years since 1971. This brings the work within the coverage of the general Scope Rule language of Rule 1.. Additionally, the work reservation language of Rule 55 colorably governs much of this work. Accordingly, it cannot seriously be contested that Carrier was required to comply with the notice provisions of the Vote to Rule 55. Further, if Carrier proceeds to subcontract over the objections of the Organization, it is required to show that it was free to do so under one of the exceptions in the Vote to Rule » . There is no question but that Carrier complied with the notice and conferencing requirements of the :Tote. The question thus narrows to whether Carrier has demonstrated the applicability of one of the exceptions to the Vote, as
 tjy agreement between the Company and the Gsn=ral
 follows: Chairman, work as riescrihed in the precerlinC, mrr,.,lr_pb
            which is customarily perinrlnnt by erhpluves if::~nl·..!

            hel'eln· may be let to curttractrnr~ u,rtl I),I I)urlorn,ud i,

            contractors' forces. However, such work may oni:· ire

            contracterl prov,rlerl that special skills not pov:essecl I,; ,he

            r-nmpany~s nrnployea· SIM ::Ial e(ILlmmunt not u!w`t··, ny (Ire

            Corrinany· or .pedal ,naterial avallahle only -he,,;or?I,_ri

            or installed through supplier, are reouired: o, v:,hen.;,Cr!: is

            such that the Company is not arleMILlately ,·c,Lnh;.,·r, TO

            hnndlr· lh_ work, Or when ,;Invrllr·ncy time 1,·rl::_,.__·ni·.

            exist whirl, Ilrucr!m tlrlllertakmgs not conlenrpillt,l lo., 11_,

            Agreement anti beyond the capa~ity of the Conrpe_ -·s

            forces. In the event the Company plans to conn-act out

            work because of one of the criteria described here,n· It sl, II

            notify the General Chairman of the Organization !n ·.!,riting

            as far in advance of the date of the contracting transaction

            as is practicable and in any event not less than fifteen, (151

            days prior thereto, extent in "emergency time rl)r_IL_re

            ments" cases. If the General Chairman, or his renresenta.

            live. renuecl.s a meetina ro diW·uss matters r,.·ia:,:·.:^, := ;:,e

            said contiacr,ng transaction the designated ;one--._ ,;t;r,:·e

            of the Comoany ,.ball nromodv never ,vlth nil.) ,r_

            1)LIInn5e. Jill() CUmmny and Or( tanl/aliol: ',·I7·'··sn,7i·,il~e

            -t)nll make gpou f:mlr attemnl :o enact .)I7 ~inopr·,;:., rj,r',C

            :onmnrlllnn -,aid 7on ,r;~rr,ng, hid f no inr;...~,,.Pv:irn .s

                                        PLB-2206 AWD. 56


Carrier urges that it did not have a floating crane available and that such was essential to proper performance of the work at issue. However, evidence developed on the property that Carrier forces, using a floating raft and telescoping crane from the bridge structure overhead, could do and have done that work on several occasions in the recent past. There is no question that all other equipment and materials required to perform the work were available or obtainable from Carrier's stores. It must be observed that the Note does not make an exception just because a subcontractor has better equipment or equipment which would make the work easier, quicker or less expensive. Rather, subcontracting is prohibited unless Carrier can show among other things that. special equipment not owned by the Company is required or the Company was not adequately equipped to handle the work. On the record before us we are not persuaded that the floating crane was required to do the bracing, sheathing and walkway construction, nor that the Company did not have equipment adequate to do that work (emphasis added), Specifically, we find unsupported by probative evidence Carrier's assertions that performance of the work by subcontractor forces off the floating crane was the only way properly to protect the newly driven piles. Finally, Carrier cites Award 3-5304 for the proposition that the work of driving piles, capping, bracing, sheathing and walkway construction was a homogeneous project which could.not and should not be "piece-mealed" to permit B&B forces to do the'bracing, sheathing and walkways. Ide do not know what facts underlay the dicta in Award 3-5304, but the holding from a foreign Carrier under a different Agreement cannot be deemed controlling on this record. The simple facts before us demonstrate that on this property the parties have developed a consistent practice whereby the pile driving and capping frequently have been subcontracted due to lack of
                                            Q(- .~so6-9w'O

                                                        s~


                                                  6,


equipment, but the bracing, sheathing and walkway construction have been reserved for performance by Carrier B&B'forces. This record shows us no adequate justification under the Note to Rule 53 for departing from that practice in the present case, and the claim accordingly must be sustained.

                        AWARD


Claim sustained. Carrier is directed to comply with this Award within thirty (30) days of issuance.

 ~'mploye Member Carrier Member

                  Dana E. Eischen, 7114

                                l.rman


Date:'i-,.~.;.-~lC%' ~~1.y?