PUBLIC LAW BOARD NO. 2774
Award No. 208
Case No. 208
PARTIES Brotherhood of Maintenance of Way Employes
TO and
DISPUTE: Atchison, Topeka and Santa Fe Railway Company
STATEMENT That the Carrier violatedthe provisions of
OF CLAIM the current agreement particularly but not
restricted to Appendix No. 8, when on September
1,1987 the Carrier contracted with Genco
Construction to remodel the interior of the
Division Office in Newton, Kansas.
The Carrier shall compensate each Claimant at
their respective rate of pay, their
proportional share of the hours expended by
contractor employes.
FINDINGS
Upon the whole record, after hearing, the Board finds that the
parties herein are Carrier and Employees within the meaning of the
Railway Labor Act, as amended, and that this Board is duly
constituted under Public Law 89-456 and has jurisdiction of the
parties and the subject matter.
Prior to September 1, 1987 the Carrier contracted with Genco
Construction to remodel the interior of the Division office located
at Newton, Kansas. The Organization alleges this work is reserved
for Middle Division Bridge and Building Employes.
The Agreement between the Organization and the Carrier provides in
part in Appendix No. 8, Article IV:
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"In the event a carrier plans to contract out work within
the scope of the applicable schedule agreement, the
carrier shall notify the General Chairman of the
organization involved in writing as far in advance of the
date of the contracting transaction as is practicable and
in any event not less than 15 days prior thereto."
On June 5, 1987 the Carrier wrote the General Chairman of the
organization stating:
"This will confirm our telephone discussion on May
26, 1987, at which time you were notified, pursuant to
the provisions of Article IV of the May 17, 1968
Agreement, of the Carrier's intent to contract out the
following work at the Division Office Building at Newton,
Kansas.
Replace all windows in building and remodel
second floor, including insulation of roof and
exterior walls, and installation of new
ceilings, new partitions, new floor covering,
new restrooms, new cabinet work, etc.
Miscellaneous work in other areas will also be
included.
The approximate starting date of the aforementioned
work is June 15, 1987. It is expected that the work will
be completed on or about April 1, 1988. Approximately
6,000 man hours will be involved in the performance o_
the work.
The Organization claims the contracting out violated the Agreement
and that fifteen (15) named Middle Division B & B Employes should
be paid equal proportionate shares at their rate for the hours
worked by the outside forces.
The Carrier denies the work is exclusively reserved to Claimants
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under any practice, principle or rule. In the handling of this
claim on the property in support of its contention, the Carrier
pointed to Third Division denial Award 19494 which involved the
same parties and rules.
The Organization points to Rule 1 of the Agreement which refers to
B & B
Foremen, Mechanics,
B & B
Paint Foremen, Painters and Paint
Helpers. It also refers to Rule 2, Seniority, which mentions B &
B Foremen, Assistant Foremen, Mechanics, B & B Paint Foremen,
Painters and Paint Helpers. The organization also points to the
Wage Appendix which sets forth a rate of pay for the B & B
classifications in Groups 1 and 2. Further, the Organization
contends that the work herein described has been customarily and
historically performed by the Carriers B & B Employes.
In the Organization's view, the work at issue is clearly
encompassed within the scope of the Agreement with references
contained in Rule 1 and 2 and therefore no proof of practice is
necessary.
In agreement with the Carrier this Board finds the references in
Rule 1 and 2 to be entirely general in nature. Numerous Third
Division Awards have held that when the rule relied upon is
general, as in this case it is the organization's burden to
establish that employes it represents have performed the work
historically and customarily on a system wide basis.
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There is no evidence to establish historic custom here. The
evidence of record on that point is to the contrary.
AWARD
Claim Denied.
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. L' berman, Neutral-Chairman
C. F. Foose, mploye Mem er -L. 'L. Pope, Carrier Member
Chicago, Illinois