PUBLIC LAW BOARD NO. 4402
PARTIES ) BROTHERHOOD
OF
MAINTENANCE OF
WAY
Emmons
TO )
DISPUTE ) BURLINGTON
NORTHERN RAILROAD COMPANY
STATEMENT OE CLAIM
1. The Carrier violated the Agreement when it assigned former St.
Louis and San Francisco Railway Maintenance of Way employes
to construct ten (10) track panels for placement
in
the 'C' lards in
North Kansas City, Missouri on Seniority District #4 (System File
C-88-5091-3/EMWE 88-2-17).
2. Because of the aforesaid violation, Foreman J. W. Stewart, Group
3 Machine Operator J. B. Huxtable, Truck Driver J. M. Stewart
and Laborer F. P. Garcia
shall
be allowed thirteen (13) hours and
twenty (20) minutes pay at their respective rates.
OPINION OF BOARD
This dispute concems the Carrier's ilse of pre-assembled rail panels that were
assembled by employees represented by the Organization but who were not covered by
the specific Agreement covering Claimants.
The initial claim in this matter dated November 27, 1987 stated
as follows:
On October 21, 22, and 23, 1987 pre-assembled panels were installed in
"C"Yards in North Kansas City, Missouri. These panels were not assembled in
district
4
or by district 4 employes. This work has ban done by district 4
employes and
a
basic track wok which makes it past practice.
It was reported that 6 panels were built a day by 4 Frisco Federation
Employes whom arc not covered by this agreement.
It is my position that rules 1, 2, 3, 5, 6, 55,66, 70,'78, and Appendix Y
were violated but not lirnited them to.
Since the carrier made no attempt to discuss this contracting out as
required by them in Appendix Y, I request that the claimants be paid ....
The Carrier responded by letter of January 15, 1988 that:
Panels were
installed as stated to eliminate crossover switches on three tracks.
The
reason for using panels is because they were more economical and time
B 4402, Award 37
rage 2
saving for operation at the tune. The carrier has built pawls of track at both
Springfield and laurel for use on Nonhan territories for years without claim.
On February
17, 1988
the Organization responded:
... Maintenance of way forces on the former CB&Q portion of the Burlington
Northern have built panels for years and the work has customarily been
performed by District 4 employes for installation in North Kansas City.
The employes who built the pawls are not covered under the Scope of our
Agreement. The Springfield Region employes are covered under a separate
agreement from those on the Chicago Region.
By letter of December
9, 1988
the Carrier stated:
._. [Y]oat have been furnished copies of requisitions covering over 200 panels
that have been shipped to forma CB&Q territory between 1983 and 1985 from
the Springfield Panel Plant. In addition, there have probably been even more
panels shipped to forma CB&Q territory over the years from the Laurel Panel
Plant than there have been from Springfield.
r
Attached are several more copies of requisitions as proof that the pre-assembled
panels have been used for various types of auk construction for several years.
Such panels have been installed by Maintenance of Way employees with no
objection until the instant claims.
The Springfield Panel Plant has shipped more than 1,000 panels of track to
former CB&Q, NP and GN territories since 1981 frA use in track construction.
The Organization responded on December 21, 1988:
Rule 6 is very clear and understandable in that tile property is divided into
seniority districts and for work to be performed on one seniority district by
employes from another seniority district is In fact a dear violation of that Rule
and that is exactly what has happened in the cases referred to here. Employes
from the farmer Frisco constructed track that was installed on District 04 of the
former CB&Q, a very clear Rule violation.
First, as the Organization ultimately recognizes, this is not a contracting out
dispute. This is a dispute concerning the
failure
to assign certain
work
to Claimants but
instead assigning that work to other similar classes
of
employees represented by the
Organization, albeit technically under a separate agreement.
The Note to Rule 55 only governs [emphasis added]:
... the contracting of construction, maintenance or repair work, or dismantling
work customarily performed by employes in the Maintenance of Way and
Structures Department ... [which] may be let to contractors and be performed by
contractors' forces.
3 4402, Award 37
Page 3
The Carrier's action was not a "contracting" of work, nor was the work "let to
contractors". See e.g., SBA 570, Award 62:
The Board finds "subcontracting" is usually conceived
of as
the Carrier sending
work to
be
performed by
a
contractor in rem for payment of monetary
consideration. This is not the instant case. The record does not reveal that the
Carrier was sending diesel units to be repaired and maintained or inspected for
which it
was
paid a monetary consideration to the contractor in lieu
of
doing the
repair and inspection work itself.
No outside entity was involved in the construction of the panels for monetary
consideration. The Carrier's forces performed the work in dispute. Were this argument
to prevail, then every dispute concerning work assignments to different classifications or
crafts could be characterized as a contracting out dispute governed by the Note to Rule 55
and Appendix Y. Without clearer guidance from the Agreement that such a result was
intended by the parties, we must reject the Organization's contracting out argument.
Second, aside from the arguments covered by the above discussion, in its
Submission the Organization also relies upon Rules 1, 2, 5 and 6. The basic thrust of the
Organization's position is that the if the panels at issue were going to be used in District
v
4, those panels had to be assembled by District d employees acrd not by Maintenance of
Way employees in different districts or covered by a separate agreement. We find no
support for that kind of argument in the cited rules.
Given the approach taken by the Organization in its arguments, the analysis must
took at the dispute as the assignment of work to employees in another craft covered by
another agreement from that governing Claimants. It is well-established that the Scope
Rule of the Agreement is general. While we have agreed with the Organization in other
awards of this Board that in contracting out disputes the principle of exclusivity is not
applicable, to succeed with this type of work assignment claim which we have found not
to be a contracting out dispute, under such a general rule it is well-established that the
principle of exclusivity applies and the Organization must therefore demonstrate that its
members perform the work exclusively on a system wide basis. Specifically, that means
that the Organization must show that in each instance panels that are used in a certain
L
B 4442, Award 37
Page 4
district have been constructed in that district, here, District 4.
L The Organization has not met that burden in this case. The Carrier's evidence
more than adequately shows that for years panels have been constructed in districts other
than the one in which the panels were ultimately installed. Specifically, the Carrier has
demonstrated that Maintenance of Way Employees in the Springfield Panel Plant (the
former Frisco) constructed panels that have been shipped to and installed in the former
CB&Q territory (covered by the present District 4).
The claim must therefore be denied.
AWARn
Claim denied.
l
Edwin li. enn
' Neutral Member
allinen . . wanson
Carrier Member Organization Member
Chicago, Illinois
Dated: