PUBLIC LAW BOARD
NO. 4402
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
STATEMENT OF CLAIM
1. The Agreement was violated when the Carrier assigned outside
forces to perform Maintenance of Way material rehabilitation work
i.e., wooden tie rehabilitation work, within the Denver Region
beginning Octobers, 1987 (System File C-88-C100-7/DMWA 88
1-28A).
2. The Agreement was further violated when the Carrier failed to give
the General Chairman advance written notice of its intention to
contract out said work as stipulated in the Note to Rule 55.
3. As a consequence of the aforesaid violations, the fifteen (15) senior
furloughed Track subdepartment employes holding seniority within
the McCook Seniority District shall each be allowed pay at the
applicable rate for an equal proportionate share of the total man
hours consumed by the outside forces in performing the afore
described work beginning October 5, 1987 and continuing until the
violation ceases. In addition:
"... the claimants have and will suffer a loss of benefits by
not being allowed to perform this tie rehabilitating work.
Therefore, please make the claimants whole for their lost
benefits including but not limited to loss of holiday pay,
vacation and insurance coverage."
OPINION OF
BOARD
This dispute raises issues similar to those addressed in Award 28 of this Board.
Award 28 dealt with the Carrier's contracting out "in-track" tie treatment. This dispute
addresses the Carrier's contracting out "out-of-track" tie rehabilitation.
By letter dated September 11, 1986 the Carrier, through Chief Engineer 1. G.
Wood, notified the Organization's General Chairman E. L. Torske as follows:
Denver Region plans to contract rehabilitation of wood ties that are
recovered as a result of the 1986 concrete tie program. As a matter
of information, following is an outline of our plans.
PLB 4402, Award 33
Contracting of Out-of-Track Tie
Rehabilitation Work
Page 2
Denver Region's 1986 concrete tie program is as follows
Location Concrete
Tiea
Wood Ti=
1. Guernsey, WY 108,500 133,600
2. Crawford, NE 20,000 24,600
Installation of concrete ties on the Denver Region began August 18,
1986 near Ft. Laramie, Wyoming.
The total process is as follows:
1. Unload concrete ties using car mover (contractor) augmented
by work train to feed new loads and remove empties.
(Started July 10, 1986).
2. Install concrete ties by BN Forces.
a. Use auto sled with tie extractors to remove wood
ties.
b. Insert concrete ties.
c. Attach fasteners.
d. Unload ballast and surface track.
3. Pick up reclaimable ties with spikes, plates and anchors.
4. Transport material to Denver Region reclaim site.
5. Unload by contractor at reclaim site.
6. Rehabilitation to be performed by contractor at Denver
region reclaim site:
a. Remove spikes from tie.
b. Sort spikes, tie plates, ties, anchors.
c. Reload spikes, ties plates, and anchors for reuse.
d. Grade wood ties.
1. BN retained ties.
2. BN
rejected ties
.
e. Apply liquid tie plugger.
f. Adz ties and treat adzed with ADZ-Life.
g. Apply stainless steel bands to both ends of split ties,
h. Bundle, band and load reclaimed ties.
Should there be any questions about the information given above,
Mr. Lutzenberger or I will be happy to discuss.
By similar letter dated February 25, 1987 the Carrier, through System Chief
Engineer W. E. Glavin, notified four General Chairmen that:
This is to inform you of the Burlington Ncrthern's intent to have
PLB 4402, Award 33
Contracting of Out-o.`-Track Tie
Rehabilitation Work
Page 3
secondhand ties rehabilitated at Spokane and Denver by different
independent contractors for the next six years starting at Spokane in
late March, 1987.
The Burlington Northern ties scheduled for rehabilitation will be
generated as a result of concrete tie projects undertaken during the
1987 - 1992 work seasons. Each rehabilitation location will process
the following approximate quantities of wood cross ties and
associated materials:
1987 206,000
1988 - 1991 412,000 per annum
1992 206,000
These materials will be shipped into the rehabilitation facilities
between March and November annually (the eight month work
season).
The contractors will assume responsibility for the complete
rehabilitation process including handling of all material at the work
site and disposal of all waste material and scrapped ties. The
rehabilitation process begins with the removal of all attached metal
materials and sorting of the various grades of reusable ties from the
scrap ties and those suitable for sale as landscape timbers. It
continues with the plugging, adzing, treatment of the adzed areas
and end plating of selected ties on a production line basis. In this
process the contractor will utilize the following special equipment,
not necessarily in the order listed, built into computer controlled
integrated assembly line:
1) A system that utilizes a weigh scale to aid in sorting
and grading.
2) Optical scanning equipmene to adjust the depth of
adzing cut.
3) Optical scanning equipment to determine tie plate
size.
4) Metal detection equipment to aid in orienting the tie
for initial removal of the spike.
5) Optical readers and scanners to sort various grades of
ties after processing.
6) Magnetic jig that would lift and feed 22 ties onto the
starting conveyor.
7) Liquid plugging equipment.
8) Adz life tie treatment equipment.
PLB 4402, Award 33
Contracting of Out-of-Track Tie
Rehabilitation Work
Page 4
The above described process must be performed by contract for the
following reasons:
1) The process requires utilization of special handling
and processing equipment not owned by the
Railroad. No such equipment is available to the
Railroad which could perform the work with the
efficiency necessary to make it practicable.
2) Without the utilization of a highly efficient
production facility, the rehabilitation of the wood ties
recovered from the concrete tie program would not
be practicable, because the handling costs per tie
must not exceed the economic value of the remaining
life of the secondhand wood ties.
3) In the absence of an economically feasible method of
reusing these ties, they would create a monumental
disposal problem which the Railroad is not equipped
to handle. Used railroad ties in large volumes cannot
be left on the right-of-way, cannot be burned in the
open and cannot be chipped and disposed of because
of local, state and federal environmental laws and
regulations.
4) The rehabilitation process itself involves hazardous
material handling requirement and waste disposal
problems which the Railrozd is not equipped to
handle and for which it has no employees trained and
licensed to handle. The "adz life" tie treatment
material requires a certified handler.
If ties are adzed in the track the disposal of the adzing material
(approximately one pound per tie) does not constitute a disposal
problem In a rehabilitation location this pound of shavings
constitutes a ton per day and therefore becomes hazardous to
dispose, store, and handle. The contractor is assuming this risk and
also disposing of scrap ties that would be a liability to Burlington
Northern.
On November 5, 1987 the Organization filed the instant claim concerning the
performance of the above-described tie treatment by Judd Brother's Company at Denver,
Colorado.
The rules governing the analysis of this dispute are detailed in Awards 20 and 21 of
this Board. As set forth in those awards, in a dispute concerning the contracting out of
work, under the Note to Rule 55 it is not necessary for the Organization to demonstrate that
PLB 4402, Award 33
Contracting of Out-of-Track Tie
Rehabilitation Work
Page 5
the employees exclusively performed the work at issue, but the Organization need only
demonstrate that the employees "customarily performed" that work. For the sake of
discussion, we shall assume that the Organization can make that demonstration in this case.
Nevertheless, we must deny the claim.l
Initially, we find that the Carrier met its notification obligations. The
correspondence from the Carrier set forth above clearly meets the requirements under the
Note to Rule 55.
We also find that the exceptions set forth in the the Note to Rule 55 apply thereby
permitting the Carrier to contract out the disputed work. Putting the nature of die disputed
work into perspective, due to the installation of concrete ties for the first time, the work
involved has not been previously performed and involves the rehabilitation of ties on a
large scale through the use of a sophisticated assembly line process, which process, in
tam, requires the use of another procedure utilizing Adz-Life and its attendant requirements
for certified operators (of which at the time, the Carrier had none). Thus, and for reasons
fully explained in Award 28 of this Board concerning the use of Adz-Life, we must find
that the exceptions in the Note to Rule 55 concerning special skills, special equipment, and
special material available only when applied and installed through the supplier must
govern?
l There is a serious question concerning the validity of the Organization's showing that the affected
employees "customarily performed" the work in dispute. While the Organization points to standard
language found in the scope rule and the rosters in the Track Sub-Department which generally address the
kind of work at issue and further while there is reference in the record to the fact that employees have
performed some kinds of out-of-track tie rehabilitation (see e.g., the Organization's letter of November 5,
1987 at p. 4), the Carrier has pointed out that this process is quite unique; there has been an extensive
history of contracting out similar work; and that employees represented by another organization (TCU)
perform related work now claimed by the Organization. However, for the purpose of this discussion, we
shall give the Organization the benefit of the doubt and assume that it has made the "customarily
performed" showing required by the Note to Rule 55.
That fact that the contractor allegedly employed day labor to perform some of the duties does not
change the result. Similarly, the fact that covered employees use claw bars, tie plugs and an Adz is not
dispositive. The entire process and not just small parts of the work must be examined and we are satisfied
that examination brings the exceptions specified in the Note to Rule 55 into play.
PLB 4402, Award 33 -
Contracting of Out-of-Track Tie
Rehabilitation Work
Page 6
We shall therefore deny this claim.
AWARD
Claim denied.
Edwin Berm
Neutral Member
E.-II Kallinen P. S. Swanson
Carrier Member Organization Member
"/-V!l -
Denver, Colorado
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April 26, 1991 ,fo
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