PARTIES TO DISPUTE:

      Brotherhood of Maintenance of Way Employes


            and


      Burlington Northern, Inc.


STATEMENT OF CLAIM:

      Claim of the System Committee of the Brotherhood that:


      (1) The Agreement was violated commencing,September 21, 1978,

        when the Carrier allowed contractor forces to construct

        a 100 foot by 60 foot by 15 foot high building of masonry

        wall, concrete floor and tar and gravel roof near Belnap

        Street, Superior, Wisconsin. (System File T-W-143C0


      (2) Bridge and Building FOREMAN Stuart A. Starika, FIRST

      CLASS CARPENTERS Robert L. Kalya, John Freeman, TRUCK

      DRIVER Gordon Massberger, CARPENTER HELPERS Richard L.

      Eastman, Daniel L. Hoeffing and BRICKLAYERS Gordon Ramsdell,

      Dennis Weir be allowed equal proportionate shares of the

      1865 man nours worked by contract forces at their respective

      rates of pay because of violation referred to in part one

      (1) of claim.


OPINION OF BOARD:

      Under date of February 24, 1978 Carrier notified the General Chairman


of an impending subcontract of work, as follows:

      Mr. .F. Fi. Funk, General-Chairman-:.--_ . .` rebruary- 24, 1978 .- .

      Hro. of Maintenance of Way Employee

      730 Itennepin Avenue File ?dW-84(c)-LQisc.

      Minneapolis, Minnesota 55403


      Dear Mr. Funk:


      As discussed in conference on February 23, 1978, a dissolved Air-Flotation waste water treatment plant will be constructed at sewer-lagoon site,.jj,Belnap.Street Shop.area..in.5uperior,:. ....

      Wisconsin.'

                                          p~ a~_oto- p,,_o S'7


    This project includes construction of a 1001 x 60' x 15' high mrtsonry building with PFf control, flocculation, dissolved air flotation, filtration, and sludge handling equipment; influerit, effluent, water, air, sanitary.sewer; modification, of the lagoon and oil separator'skimming,systeas; and.. _ .dredging_the:existing lagoons.; ,~..: . ~~,· ,


    It will be'necessary'to contract construction of the building as there are only two bricklayers on Seniority District No. 12. They have only performed small maintenance items in the past, having never laid an entire building._ and do not have the capability to handle a building; of this mairnitude. The process equipment to be placed inside the building is technically complicated and. must be installed by personnel who are familiar with it and can handle start-up and initial de-bugging. Building construction and equipment installation must be totally coordinated in;order to meet state-imposed deadlines.' . for completion.


    It will be necessary to have contract forces clean the lagoons with n specially desimned "mud cat" dredge which can remove rif-posi is on the lagoon bottoms without causing scarring or undue dicrilntion of bottom sediments. The Company-does not possess such speciaLequipment. rr


    Company forces will be utilized to install outside utilities to serve the building which will include water lines, sewer lines, and roadway. _,


    Sincerely,


    L~' K.· Hall · '':z: .. _' , , =ABSt.· to:.yice ,President;

    · B~ i af2D.',; b--..·.Y,:~.y..--.,


Following disagreement by the General Chairman and a conference, the

 Organization advised Carrier on March 23, 1978 as follows:

    Dear Mr. Hall:


    °l ease refer to your letter of February 26·, 1978, Fil~'i'·t-o4(u1_r...r_~·, concerning your desire to contract the construction of high masonry builuing in "operinr, Wisconsin.


    I live discussed this m~cter with our i.nc::tl Chnirntenand our %'ic:e -rne·.-nJ. Chnirr^en, ~+n nlso disctts:;nd this m:nttnr -idt the brickr.,vers in 0,:niorit :· District d12 :;nd B&B employes ,t the Supurior-Duluth -,rea ,nd all :eel that c.re could nccomoli::h this work within .-, r"asnnablu time nod rh~r··for=. we are not igreeable_ to contr;;ctinq th,: construction of this building,.


    '.~ith prover '1sslst:inC°wn "taintrn.cnc:: c,f. '.tnv brickinvrr·, c:tn nv one sine

    ~f this building. !5' hi^,h by 100' in nonrn·:imacelv six !b: ~.nvs, ;ht to

    ^ention the fact cnac cnere are two ,ddi.tiort<^,i ?L:il e^niovns^ ;n the

    `unerinr-DUlut'.h .zrpa :.'ho :lre c;Dable of tavinq :E:nQnc ._UC'.?. '%e see no

    re^snn to oermit -oncrncc :orces_Cocopsrruct_t:a: 'ltlildin^.

                                        PLB-2206 3

                                        AWD. 57


Carrier rejected the General Chairman's contentions by its reply of May 30,

 1978, as follows:

        Referrina to your letter dated t".arch 23, 1978, concerning

        rroposnl to contract construction of waste water treat

        ment plant at Superior, Wisconsin. _ .,


        The Carrier does not concur with your contention that our forces would be capable of constructing a building of this magnitude in a reasonable length of time to meet completion schedule. In addition, the buildinC will have a tar and gravel roof and the Carrier's forces do-not have the skilled manpower and specialized equipment to perform this work.


        The two bricklayers, which you havr' mentioned in your letter of March 23, 1978, do not have the capability to handle a building of this magnitude having only performed small maintenance items in the past. For these reasons, and those set forth' in my' letter of February-2u, 1.970, it will be necessary to"contract'eonstruction of this-building..


Thereafter, Carrier subcontracted the construction work at issue, specifically the pouring of concrete footings, brick work, and tar and gravel roofing. It is not disputed that installation and construction of water lines, sewer lines and roadway were reserved for and performed by Carrier's B&B forces. Thereafter, the present claim was initiated on November 17, 1978, as follows:

 We are in receipt of information that Burlington Northern Inc. violated the current agreement with the Brotherhood of Maintenance of Way Employes dated May 1, 1971 when they contracted to have a mc-lTirv hiiilAin^, ronstrueted. .

 The facts in this case are that the employes of Burlington Northern possess the skills necessary to construct this building. The building constructed was 100 ft. -Long, 60 ft. wide and 15 ft. high, to be used as a waste water treatment plant in the Burtinhtun Northern Shop site ne-r Bnelnap Street, Superior, Wisconsin. The construction started S^ptcmber 21, 1978 and contract was awarded to J. R. Jenson ,4 .Son, Superior, Wisconsin.

 By rr:fcrral, Rules 1, 55 and note to Rulo 55, also Rule 69 are made a part of this letter.

 Due to the violation of the Brotherhood of Maintenance of Way Employes Agreement we are presenting a claim in behalf of Crew Members of the Bridge & Building Cru·· Located in Superior, Wisconsin and the Bricklayers holding seniority on Lake Seniority District 412. The claimants are, Dale E. Bart- - Foreman, Stuart A.

 Stariha, Robert L. Ralya, & John Frccmnn - First Class Cnrocntcrs, Gordon Mossber-lc~:ruck Driver, Richard ,.. -Eastman, Daniel L. ilor·ffl,int - dcipers, Gordon Rams:ieli
 and Dennis ivcir - 3ricklavcrs. -
                                              ~G/.3 a~-o 6 -^ .~/.~ 57


                                                4


The claim is for all stra·.ght time and overtime hours worked by the contractor and that a like number of straight time and overtime hours be alloted to the claimants to be equally dlvided'.at their respective rates of pay. This is a continuous claim beginning September 21, L978 and continuing until the contractor has completed the work or has been relieved from the contract by Burlington Northern Inc. it is estimated that 1865 man hours have been expended by the contractor to this date.

 This claim is consistent and sustainable under the rules of the current agreement dated May L, 1971. We request information relative to the amount of payment for each claimant and the pay period payment will be received.

 The claim was denied on the property on grounds that: 1) Carrier had complied with the notice and consultation requirements of the Vote; 2) Carrier had demonstrated existence of several of the conditions in the Note under which subcontracting is permitted; 3) time constraints imposed by State mandates and penalties for late completion created "emergency time requirements"; 4) Carrier was nor required to "piece-meal" the project according to Award 3-5304; and 5) arguendo the amount of man hours of damages claimed were unsubstantiated and Claimants all were "fully employed" on claim dates. The matter remained unresolved,following which it was appealed to us for determination.
 It is apparent from the record that the specific work at issue is block laying, some cement finishing and the construction of the tar and gravel roof. The water lines, sewer lines, and roadway work were performed by B&B forces, and the lagoon dredging and modification, as well as the processing equipment and utility installation, were not contested. With respect to the block laying, Carrier asserts that its B&B forces did not possess "sufficient skills" to complete the project as quickly as did the contractor's masons. Given the wording of the Note (i.e., "...such work may only be subcontracted provided ..."), the evidentiary burden is upon Carrier to prove that its employes did not possess "special skills" required to do the work; that it did not own "special equipment" required to do the work; that it was not adeauatelv
equipped to handle the work; or that "emergency time reauir~-nenrs" existed -
                                        PLB-2206

                                        AWD. 57 5


which made the undertaking bevond the caoacitv of Company forces. (Emphasis added.) Although the Company has made assertions or conjectures in the direction of each of these alleged inadequacies, it has provided insufficient evidence to establish fulfillment of any of those conditions which would have permitted the subcontracting of the cement work, block wall construction and roof construction, notwithstanding the objections of the General Chairman. The primary defense by Carrier has been the alleged existence of an "emergency time requirement" whereby it had to complete the project by April 1, 1979 or face "possible penalties up to $10,000 per day". Nowhere is this assertion supported with probative evidence sufficient to establish fulfillment of the conditions in the Note. Arguendo, absent speculation and conjecture, there is no probative evidence to establish that B&B forces could not have completed the cement floor, block wall construction and roofing in time to permit compliance with the alleged deadline of April 1, 1979. It is not refuted that at least three of the Claimants were emperienced bricklayers and/or previously had constructed block wall buildings. In light of these facts, we find unpersuasive Carrier's assertions that its employes lacked required "special skills" to construct this concrete block water treatment plant. Finally, Carrier's bare assertions that it lacked required "special equipment" or was "not adequately equipped" to build the tar and gravel roof are rebutted by the General Chairman's unrefuced counter assertions that Carrier possessed an adequate tar pot and that Carrier forces had in fact constructed an even larger tar and gravel roof on the Car Shop at Brainerd. Based upon the foregoing, we find that Carrier has failed to provide persuasive evidence that it met the conditions for an -Yception to the subcontracting prohibitions of the Note to Rule 55. Accordingly, we shall sustain Part One of this claim.
                                          ,~G~S a~oh- two 5 7


                                                6


With respect to Part Two, we find that the Organization has failed to support its claim for 1,865 man hours in damages. In connection with the
block work, the Organization has not rebutted Carrier assertions that the -
 outside bricklaying crew of four (4) employes completed the block laying in
 two weeks. In the absence of evidence one way or the other, we shall assume
 eight hour days/forty hour weeks, or 320 man hours. The record is absolutely
 barren of any probative evidence regarding the actual time spent by contractor's
 forces on the concrete flooring or tar and gravel roof work. The Organization _
 has the burden of proving every material aspect of its claim, including the
 basis upon which it asserts specific compensatory damages. We find on the
 record before us the only demonstrated damages to Claimants were the loss of
 320 man hours of work opportunity for which we shall make them whole.
                        AWARD


      Part One or the claim is sustained. Part Two of the claim is sustained


f/0 to the extent of ee"s~ proportionate shares for each Claimant of -6 man hours i'-,
h~5
 at respective rates of pay. Carrier is directed to comply with this
Award within thirty (30) days of issuance.
                                    . .~

                              ~' ;'_-_:-'--: L .- i~ - .G .i --


Empioye .Member Carrier Member
                  Dana E. Eischen, 'rman