' PUBLIC LAW BOARD
NO. 4402
PARTIES ) BROTHERHOOD OF
MAINTENANCE OF WAY
EMPLOYES
TO )
DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
SIATEMENT OF CLAIM
1. The Agreement was violated when the Carrier assigned outside
forces to perform ditch cleaning work on the track east of
Sheridan, Wyoming, on the Yellowstone Division, on May 19, 20
and 21, 1988 (System File C-88-ClO0-69/MWA 88-10-18E).
2. The Agreement was violated when the Carrier assigned outside
forces to perform ditch cleaning work starting at the tunnels
between ~uemsey and Casper, Wyomin&b_egtnni~ng ~o~n May 24,
1988 and continuing (System File C-88-C100-68/M
W
A 88-10
18F).
3. As a consequence of the violation referred to in Part I hereof:
... the two senior furloughed employees should be allowed a total
of 16 hours straight time and 17 hours overtime at the foreman's
rate of pay. The next two senior furloughed employees should be
paid the same amount of time at the group 3 rate of pay, with the
two junior furloughed employees from the top six that were on
furlough on May 19, 20, and 21, 1988 to be allowed the same
hours of pay at the laborers rate of pay. ***"
4. As a consequence of the violation referred to in Para h 2
hereof, Foreman A. J. Stangland end Group 2 Machine Eperators
T. L. Anderson, R. D. Andrews, J. W. Bates, K. O. Davis and G. L.
Witt shall each:
"... be paid at their respective rates of pay for all time lost from
May 24, 1988 until this violation no longer exists."
OPINION OF BOARD
This dispute involves the contracting out of certain ditching work.
By letter of December 21, 1987 the Carrier advised various General Chairmen:
As
information the Carrier plans to utilize a high production ditching machine
across the system starting approximately January
4,1988 on
the Portland
Division, Seattle Region. This machine was manufactured
by
I.oram
Maintenance of Way, Inc. and is a specialized piece of equipment
which is
B 4402, Award 38
rage 2
owned, operated and maintained by Loran. The ditcher will be marmad by three
Loram personnel, and all flagging, supervision, and other work to support the
ditching will be accomplished by BNRR people. BNRR intends to enter into a
service contract with Loran for this machine beyond 1998 and into 1991, since
mull-year service contracts represent substantial savings in rate structures.
The ditching program is intended m correct drainage problems which currently
exist on BNRR right of way. This machine will be passed from Region to
Region and utilized at locations as determined by the five individual Regions
based on need and requirements.
a i a
By letter of February 12,
1988
the Carrier provided the Organization with a
tentative schedule for the ditching work to be performed by Loran.
Conference between the parties did not resolve the Organization's protest over the
Carrier's use of the Loram to the satisfaction of the Organization. This claim followed
concerning the use of that outside contractor on certain portions of the Yellowstone
Division during May
1988. ,
As found in earlier awards of this Board, the Organization need not demonstrate
that the involved employees exclusively performed the disputed work. See. e.g., Award
20 of this Board. The threshold question under the Note to Rule 55 is whether the
employees "customarily performed" the work at issue. The record demonstrates that
ditching work has been customarily performed by the employees.
The question'in this case, then, is whether or not this customarily performed work
can be contracted out because of "special equipment not owned by the Company" as
provided in the Note to Rule 55. The Carrier advised the Organization by letter of
August
22, 1988
that:
The machinery required to perform this work is not owned by the Carrier and is
not available to the Carrier for operation by Carrier forces. The company
providing this service, Loran Maintenance of Way Inc., will not lease this
equipment to the carrier without their own operators. They want to operate this
very complex high production equipment to maintain standards of performance
and protect their investment. At present, there are only two machines of this
type in the U. S. that are capable of producing the results that the Loram ditcher
in question can provide. Ratter than just plow away material, the machine
actually removes material without fouling the track structure and builds a new
ditch. The machine is capable of ditching, profiling, contouring, continuous
waste material removal and several other salient features which distinguish it
from any other type of equipment that the Carrier currently owns or is available
$ 4402, Award 38
Page 3
for rent. The machine establishes a ditch profile with a smooth bomm which
provides for the efficient runoff of stomt drainage. Much of the work that this
machine performs has simply not been done in the past because of the difculty
and expense of using more conventional equipment in these areas. It has the
capability of handling air dump cars to deposit material in.
Recently, in PLB 4769, Award 21 that Board had occasion to pass upon the use of
Loram as part of the program announced by the Carrier's letter of December 21, 1987 and
the above-stated reasons for its actions. That Board held:
The board concludes that this complies with the portion of the Note to
Rule 55 concerning "special equipment not owned by the Company". The
record indicates that the Carrier attempted to lease the equipment for use by its
own employees, without avail. It is clearly the case that Carrier employees do
perform ditching work. Here, however, the Carrier has demonstrated that the
capability of the Loram equipment is substantially greater than that which can
otherwise be achieved. The Note to Rule 55 specifically covers such situation.
In light of the fact that the dispute in this case arises out of the same basic
transaction that was involved in PLB 4768, Award 21, our inquiry at this point is limited
to whether or not that decision is palpably eztoneous. We find it is not.
This record demonstrates that the Loam Ditcher is a far superior ditching system
than any equipment owned by the Carrier and the Loram Ditcher is capable of performing
ditching functions that Carrier-owned equipment cannot perform. Given that
demonstration and further given that the Carrier has also demonstrated that it was unable
to lease that equipment, for purposes of this case, those showings lead us to conclude that
PLB 4768, Award 21 is not palpably erroneous and must be followed.
We do note, however, that the Letter of Agreement of December 11, 1981
(Appendix Y) provides that the Carrier agrees to "the use of their maintenance of way
forces to the extent practicable, including the procurement of rental equipment and
operation thereof by carrier employees." The status of this record and the record in PLB
4768, Award 21 shows that the Carrier "attempted to lease the equipment for use by its
own employees, without avail." Our award in this matter is therefore confined to the
existence of that factual premise that the Carrier could not lease such equipment for
operation by its forces.
2 4402, Award 38
rage
a
AWA~2
Claim denied.
..~wtn
lclSW~
.lienn
Neutral Member
E.1. Kallinen P. S. Swanson
Carrier Member Organization Member
Chicago, Illinois
Dated: