C:\AWARDS\OUT\PLB3781-64.htm

FRED BLACKwELL
ATTORNEY A? LAW

19129 ROMAN VWY

GAIMERS&URG.

MARYLAND 20678

p01) 977-M

PROCEEDINGS BEFORE PUBLIC LAW BOARD NO. 3781

AWARD NO. 64

Case No. 64

Referee Fred Blackwell

Carrier Member: J. H. Burton

PARTIES TO DISPI

Labor Member: K. R. Mason

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

CONSOLIDATED RAIL CORPORATION

STATEMENT OF CLAIM:

Claim of the System Committee of the Brotherhood that:

1. The Carrier violated the Agreement when it assigned an outside concern to perform bridge undercutting work between Framingham, Massachusetts and Chatham Center, New York beginning July 30, 1987 and continuing (System Dockets CR-3498, CR-3628, CR-3998, CR-4171 and CR-4172).

2. The Carrier violated the Agreement when it assigned an outside concern to perform right of way ditching, hauling of fill material and installation of drain pipes between Framingham, Massachusetts and Chatham Center, New York beginning June 1, 1988 and continuing (System Dockets MW-205, MW-206 and MW-207).

3. As a consequence of the violation referred to in Part (1) hereof (System Docket CR3498), Track Foreman W. Cummings, Machine Operators C. Pappas, C. Laffond, J. P. O'Conner, Vehicle Operators T. Pais, D. Stumborg, R. Mercure, M. Damours, C. Harrison, M. Phelan, Trackmen D. Ravizaa, T. Evans and J. Donley shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces beginning July 30, 1987 and continuing.

4. As a consequence of the violation referred to in Part (1) hereof (System Docket CR3628), Track Foreman M. Callahan, Machine Operators G. McMullen, D. Tolomeo, J. P. O'Conner, J. J. O'Conner, A. McMenamin, Vehicle Operators T. Pais, D. Stumborg, C. Sorensen, M. Camours, Trackmen V. Okskin and S. Ellis shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces between September

Public Law Board No. 3781 / Award No. 64 - Case No. 64

21, 1987 and November 5, 1987.

5. As a consequence of the violation referred to in Part (1) hereof (System Docket CR3998), Machine Operators J. B. Tytula, C. Pappas, J. J. O'Conner, M. Callahan, D. Tolomeo, J. P. O'Conner, A. McMenamin, Vehicle Operators R Mercure, C. Harrison, R. Moore, R. Viereck, J. W. Tytula, S. T. Ellis, T. J. O'Conner, J. Richard, J. McMahon, Traclanen V. Okskin and D. Eckenrod shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces beginning December 2, 1987 and continuing.

6. As a consequence of the violation referred to in Part (1) hereof (System Docket CR4171), Track Foreman J. J. O'Conner, Machine Operators J. P. O'Conner, F. Pratt, Vehicle Operators R. Viereck, J. Richard, Trackmen V. Okskin, D. Eckenrod and E. W. Aitken shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces beginning on March 15, 1988 and continuing.

7. As a consequence of the violation referred to in Part (1) hereof (System Docket CR4172), Track Foreman J. J. O'Conner, Machine Operators M. Callahan, D. Tolomeo, Vehicle Operators R. Mercure, C. Harrison, R. Moore, R. Viereck, J. W. Tytula, S. T. Ellis and T. J. O'Conner shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces beginning on March 18, 1988 and continuing.

8. As a consequence of the violation refereed to in Part (2) hereof (System Docket MW205), Track Foreman P. T. Papadakis, Machine Operators, A. M. McMenamin, J. P. O'Conner, C. Pappas, D. L. Tolomeo, Vehicle Operators T. Pais, M. Phelan, E. G. LaPoint, Trackmen V. W. Okskin and D. Eckenrod shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces from June 7, 1988 to July 8, 1988.

9. As a consequence of the violation referred to in Part (2) hereof (System Docket MW206), Track Foreman P. T. Papadakis, Machine Operators A. M. McMenamin, J. P. O'Conner, C. Pappas, D. L Tolomeo, Vehicle Operators T. Pais, M. Phelan, E. G. LaPoint, W. Anderson, M. Callahan, J. Kostorizos, Trackmen V. W. Okskin and D. Eckenrod shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces from June 2 to 30, 1988.

10. As a consequence of the violation referred to in Part (2) hereof (System Docket MW207), Track Foreman P. T. Papadalds, Machine Operators A. M. McMenamin, J. P. O'Conner, C. Pappas, D. L Tolomeo, Vehicle Operators T. Pais, M. Phelan, E. G. LaPoint, Trackmen V. W. Okskin and D. Eckenrod shall each be allowed pay at their respective rates of pay for all hours worked by the contractor's forces from June 1, 1988 to July 7, 1988."

FINDINGS:

FRED BLXKWM
ATM EY AT UN Upon the whole record and all the evidence, after November 8, 1990 hecuing in

19129 ROMAN WkY

GADHEHSBUK

MARYLAND 20979

(301/ 977fi0D0

Public Law Board No. 3781 / Award No. 64 - Case No. 64

Washington, D. C., 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 by agreement and has jurisdiction of the parties and of the subject matter.

DECISION

Claims denied.

OPINION

This case arises from claims filed by BMWE Employees in and after July 1987, on the basis of allegations that the Carrier improperly contracted out BMWE Scopecovered work, in connection with a project to increase the vertical track clearances to 19 feet 4 inches under bridges on the Carrier's Boston Line from M.P. 21 to M.P. 183, between Framingham, Massachusetts, and Chatham Center, New York. The purpose of the project was to lower the roadbed underneath the bridges, by undercutting the trackage under each bridge and relaying the track at a lower elevation, to achieve clearances sufficient to accommodate tri-level automobile cars and double stacked, container cars.

The Carrier's BMWE forces performed all of the track work that was required to carry out the project.

The herein claims, which were handled on the property as eight (8) separate cases, have been consolidated into a single case for presentation to this Board.

The Organization submits that the disputed work is encompassed within the

FRED BLACKWEU.
MppREY AT LM express, explicate text of the Scope of the BMWE Agreement, and that the Carrier violated

19129 ROMAN NAY

GAITHERSBURG,

MARYLAND 20879

(9011 9n-soon

Public Law Board No. 3781 / Award No. 64 - Case No. 64

that Agreement when it contracted the work to an outside company.

The Carrier submits that is action in contracting out the vertical clearance project on the Carrier's Boston Line did not violate the Agreement, and that on that basis the claim should be denied. The Carrier more specifically asserts that the disputed contracting out action was justified because of the Carrier's lack of specialized equipment, unavailability of qualified operators of such equipment, and schedule limitations. The Carrier further asserts that even though its BMWE Employees, arguably, could have performed some portions of the contracted work, the Carrier was under no obligation to attempt to piece-meal the work in order to give some portion of the work to the Carrier's Employees.

From full review and assessment of the whole record, the Board finds and concludes that the record does not establish a violation of the BMWE Scope Rule on the part of the Carrier. The claims will therefore be denied for lack of the requisite record support."

The record shows that when General Motors decided to use completely enclosed tri-level cars, there was need for Conrail to initiate a project on its Boston Line to provide vertical clearances of 19 feet 4 inches, underneath bridges, in order to accommodate 19 foot multi-level traffic. The project was also needed to accommodate

1
FRED BLACKWELL All prior authorities submitted for the record have been considered and analyzed in
ATTORNEY AT L4V arriving at this decision.
19129 ROMAN WAY
DAITNaiSBURG, 4
MARYLAND 29879
(301( 9775090

Public Law

Board No. 3781 / Award No. 64 - Case No. 64 -

the continuing growth of Conrail's double stacked flat car container business in the New England market (Carrier's Exhibit 3-M).

By letter dated June

4, 1987,

Conrail's Senior Director-Labor Relations gave notice to General Chairman J. P. Cassese of Conrail's intent to contract with an outside company to provide forces for excavation, drainage, rock removal, and installation of ballast at specified locations on the Boston Line. The letter also stated that the project was scheduled to be completed between July

1987

and December

1988,

and that the estimated cost of the project was 2.2 million dollars. The letter dated June

4, 1987, is

reproduced in full at Appendix Pages 1 and 2.

The Board is persuaded by the foregoing and other information of record that the Carrier was not required to piece-meal the work involved in the clearance project in order to give portions of the work to the Carrier's BMWE Employees. If the Carrier had assigned the disputed work to its own Maintenance of Way Employees, it is probable that this would have resulted in the Carrier giving the clearance project priority over work usually assigned to its Maintenance of Way Employees; however, the Carrier decided, for efficiency considerations, to use a mix of contractor forces and its own forces to carry out a project that extended for about a year and a half. This was a proper use of management power.

Accordingly, on the basis of the record as a whole, the Board finds that the claims should be denied for lack of the requisite support.

FRED HLACKWELL
ATTORNEY A1 LAW
18129 siOM MY
GA~NMSBUHG, 5
MARYLAND 20879
(301) BTl30W

Public Law Board No. 3781 / Award No. 64 - Case No. 64

Fred Blackwell

Chairman / Neutral Member

Public Law Board No. 3781

April 12, 1994

FRED BLACKWELL ATTORNEY AT LAW

19729 ROMAN MY

MARYLAND 29979
6 poll w4oao

Public Law Board No. 3781 / Award No. 64 - Case No. 64

AWARD

The claims are hereby denied for lack of the requisite record support. BY ORDER OF PUBLIC LAW BOARD NO. 3781.

Fred Blackwell, Neutral Member

AH. Burton, Carrier Member 4~-~ Labor Me mb

Executed on ca · ~ -9 S

CONRAIL\3781\64-64.412

FRED BLACKWELL
ATTORNEY AT LAY
19129 ROMAN YIAY
GAITHERSBORG, 7
MARYLAND 20879
(301) 977-5000

37-&V

June 4, 1987 Mr. J. P. Cassese, Sr., General Chairman Brotherhood of Maintenance of
Way Employes
IIGS Marlkress Road, Suite 8 Cherry Hill, NJ 08003
File 079.50-56
Dear Sirs This is to advise that we have undertaken an extensive clearance project from Framingham, Mass. to Chatham Center, New York to provide a 19'-4" vertical clearance along the Boston Line from 1..P 1.00 to MP 183.00 in order to permit 19' multi-level traffic. To accomplish this work, we will require contract forces for excavation, drainage, rock removal and installation of ballast at the following locations:
STRUCTURE LOCATION
*T50.25 "- Nort t _ Pittsfield, MA
*150.09 First St., Pittsfield, MA
*149.93 Second St., Pittsfield, MA
148.18 Junction Rd., N. Adams Jct., MA
90.74 Old Boston Rd., Ludlow Jet., MA
74.84 South St., W. Warren, MA
70.66 warren St., Warren, MA
47.30 Curtis Pkwy., Worcester, MA
*96.30 Exeter St., Worcester, MA
*46.23 Cambridge St., Worcester, MA
*45.89 Gates St., Worcester, MA
*41.67 Hamilton St., Worcester, MA
22.35 winter St., Framingham, MA
* - Scheduled for the 1987 Work Season
The contracted work is estimated to be $2,258,350 and is scheduled to be done between July 1987 to December 1988.
_~X_HIBIT 9

'Appendix Page 1

3701

;. P. Cassese ?age 2 J,;ne 4, 198?

Conrail does not have the rock drilling and rock splitting equipnent that may be required to perform rock excavation at the above locations. our forces will perform all track removal and installation work. Solely as information, there will be structural work done by a contractor during the above period to raise 30 government bridgr. that Conrail does not own or maintain. Very truly yours, /s/ G. F. Bent f"f17 T~ F G. F. Bent Senior Director-Labor Relations

EXHIBIT I
`

Appendix Page 2