PUBLIC LAW BOARD NO. 4402
PARTIES ) BROTHERHOOD OF MAINTENANCE
OF
WAY
EMPLOYE$
TO )
DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
STATEMENT OF CLAIM
1. The Carrier violated the Agreement when it assigned outside forces
to perform rail grinding work at various locations on the Alliance
Division beginning on March 1, 1988 (System File C-88-C100
47lDMWA 88-3-3).
2. As a consequence of the afore-stated violation, the senior
furloughed welding foreman on Seniority District # 10 and the two
(2) senior furloughs grinder operators on Seniority District #10
shall each be paid, at their respective rates, for an equal
proportionate share of the total number of man-hours expended by
the outside forces performing the work involved here, beginning
on March 1, 1988 and continuing.
OPINION OF BOARD
This dispute involves the contracting out of certain rail grinding work.
By letter of January 29, 1988 the Carrier advised various General Chairmen:
This is to inform you of the Carrier's plans to continue the ongoing program of
rail grinding on the Burlington Northern Railroad System in 1988 and beyond.
The program for 1988 calls for the use of seven (7) switch and crossing grinders
and three (3) production grinders across the entire System.
This program utilizes specialized equipment which is owned, operated and
maintained by the contractors performing the worlt. Rail grinding has been
performed in this manner over the past several years on the Burlington Northern,
alai will continue to be done in an effort to extend the life of the rail, switch
points, frogs and crossings. Company forces accompany these machines on
each territory to perform work incidental to the machines' operation such as
hand grinding and fire prevention.
In order to keep you informed regarding the nature of future grinding programs
attached is a tentative production rail grinding schedule for 1988. Obviously,
this schedule is subject to change as the work season progresses.
Conference after the Organization protested the Carrier's action did not result in
resolution satisfactory to the Organization. This claim followed protesting the use of -
rB 4402, Award 39
Page
2
outside forces on the Carrier's Alliance Division commencing March
1,1988.
As found in earlier awards
of
this Board, the Organization need not demonstrate
that the involved employees exclusively performed the disputed work. Sec. e.g., Award
20 of
this Board. The narrow question here
is
whether the Carrier's use
of
Jackson
Jordan Company to perform the disputed rail grinding and that contractor's use
of
the
Jackson Jordan Rail Grinder with its own forces rather than the performance of this work
by the Carrier's forces fell within the "special equipment" provision
of
the
Note
to Rule
55.
We find that it does.
The speck work performed
by
the Jackson Jordan Rail Grinder
is
found in the
Carrier's letter of September 27, 1988:
... The mxhinea of this dispute am self propelled locomotive siu machines
with multiple grinding heads controlled by computer program.
s o t
These new rail grinding machines have an entirely different mission than
performed by hand grinders or simple machine grinders. The early grinders
were used for grinding down excessive weld or fitting switch points. That work
remains today undisturbed by the new technology. The new machines perform a
L work function that was not previously in existence and that is the reshaping of
rail to provide a proper rail ball contour for mots affective and longer term fife
span. This new work was not previously performed at all by anyone
See also. the Carrier's letter
of April 4, 1989:
._. While Maintenance of Way Employees have operated and do currently
operate single stone hand grinders the machines referred to hate am a totally
different type of equipment with a different concept of operation . ... The Switch
Grinders being referred to here am a much larger piece of equipment having 8
grinding stones each for a total of 16 stones which am operated and controlled
by a complex computer system requiring more skill to operate and much more
dally maintenance due to the size of the machine and the large volume of metal
which they am able to remove. The single stone hand grinders which BN
employees operate could not remove the amount of metal and restore the profile
on the rail in the switches like the Switch Grinders am capable of. However,
Maintenance of Way employees
suit
perform touch-up grinding ore frogs,
rslwitch points and stock rails with the single stone grinders in connection with
the Switch Grinders.
The work performed by these Switch Grinders is an extension of the work done
by the Loram Production Rail Grinders which have 80 to 88 grinding stones.
These machines and ones owned by Sperm have bores operated on the BN since
1984 on an extensive basis, and were operated on the BN on a limited basis for
many years prior to 1984,
.B 4402, Award 39
Page 3
The production grinders have always been operated by the contractor's
employees. The production grinders are not capable of profile grinding rail in
switch and road crossing areas. The purpose of the Switch Grinders is to grind
the areas that the production grinders cannot grind, or to grind spot areas as
compared to the production grinders that usually grind out-of-face across the
railroad.
e
~ r
The Switch Grinders required to perform this work are not owned by the Carrier
and are not available to the Carries for operation by Carrier forces.
A letter from Jackson Jordan dated May 7, 1987 confirms that:
... Jackson Jordan offers its SCG-23 Switch and Crossing Grinder on either an
outright purchase basis or on a long term lease agreement using Jackson
personnel to operate and maintain the grinder.
Operation by skilled Jackson personnel is required because of the
complexity of the equipment and our desire to provide levels of performance
necessary to insure continued economic justification of switch and crossing
grinding.
The relevant portion of the Note to
Rule 55
provides that work customarily
performed by the Carrier's employees:
... may only be contracted provided that... special equipment not owned by the
Company, lisl required ....
The record shows that the Carrier does not own the type of grinder that performs
the function described by the Carrier which is needed to accomplish the disputed switch
and crossing grinding work. As described by the above, that grinder is "special
equipment" within the meaning of the Note to Rule 55. Under that portion of the Note to
Rule 55 quoted above, the Carrier can therefore contract out the work in dispute.
We are not satisfied that the Organization has demonstrated that the Carrier could
have leased the equipment elsewhere as described in the Letter of Agreement of
December 11, 1981 (Appendix Y). As does Jackson Jordan, letters from Fairmont
Railway Motors and Loram Maintenance of Way found in the record show that, if leased,
such an arrangement for use of the equipment by the Carrier must be with use of the
contractors' employees as operators.
Moreover, the arguments made by the Organization that such leasing
.B 4402, Award 39
Page 4
arrangements were entered into by the Canadian National Railroad with use of its
employees as opposed to contractor's employees is not sufficiently established in this
record on a factual basis. The record is in dispute over whether there was such a lease
arrangement as contended by the Organization or if the CN purchased the equipment and
then used its employees. Without more, such an argument does not show that a leasing
arrangement with use of the Carrier's forces can be achieved, particularly in light of the
contractors' statements of their unwillingness to lease the equipment for operation by the
Carrier's employees.
We have also considered the Organization's arguments that the Carrier is
attempting to avoid the provisions of the scope rule, the Note to Rule 55 and Appendix Y
through its reliance upon outside contractors utilizing technologically advanced
equipment to the detriment of the covered employees. We need not address that general
allegation in this matter. Each case must be examined on its individual merits and in each
case the Carrier
will
be required to establish that its actions fall within the confines of the
Note to Rule 55 and Appendix Y. In this specific case, howevcT, we find that the
requirements of the Agreement have been met.
As we have stated in other awards, we do note that 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 shows that the Carrier could not do so because of
the requirements of the contractor that its forces be used to operate the equipment. Our
award in this matter is again confined to the existence of the factual premise that the
Carrier could not lease such equipment for operation by its forces.
' 8 4402, Award 39
Page 5
AWAR
Claim denied.
`win n H. Berm
Neutral Member
inen - 'P3
r:
Swans Carrier Member Organization Member
Chicago, Illinois
Dated:
L