PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 21
Carrier File No. 4MWB 89-03-134E
Organization File No. T-M-641
STATEMENT
OF
CLAIM
1. The Carrier violated the Agreement when it
assigned outside forces (Loram Maintenance of Way, Inc.)
to perform ditch cleaning work on the track between
Milbank and Mobridge, South Dakota, on October 12, 13,
14, 15, and 17, 1988 (System File T-M-644/4MWB 89-0314E).
2. The Agreement was further violated when the
Carrier failed to properly notify the General Chairman of
its plans to contract out the work involved here, in
accordance with the provisions of the Note to Rule 55 and
the December 11, 1981 Letter of Agreement (Appendix Y).
3. As a consequence of Part 1 and/or 2 above, Group
1 Machine Operators M. L. Hutchinson, S. E. Edin, D. C.
Bona and K. D. Rasmussen shall each be allowed thirty-two
(32) hours pay at their respective straight time rates
and sixteen (16) hours pay at their respective time and
one-half rates.
F I N DIN GS
This dispute is another in a series concerning the application
of the Note to Rule 55 as to the notice provision thereof and the
PLB No. 4768
Award No. 21
Page 2
question of the Carrier's right to contract work. These disputes
have been reviewed by the Board, and .much of the parties' basic
arguments and the Board's findings thereon are incorporated herein
by reference. See Award Nos. 1 and 14, among others.
of particular relevance here is that portion of Rule 55
reading as follows:
By agreement between the Company and the General
Chairman, work as described in the preceding paragraph
which is customarily performed by employes described
herein, may be let to contractors and be performed by
contractors' forces. However, such work may only be
contracted provided that special skills not possessed by
the Company's employes, special equipment not owned by
the Company, or special material available only when
applied or installed through supplier, are required, or
when work is such that the Company is not adequately
equipped to handle the work, or when emergency time
requirements exist which present undertakings not
contemplated by the Agreement and beyond the capacity of
the Company's forces . . . .
In this instance, the System Chief Engineer notified General
Chairmen on December 21, 1987 of its intention to contract special
ditching equipment from the Loram Company for use on a system-wide
basis. In response to an Organization request, a conference on the
matter was held by telephone on February 12, 1988. Thereafter, the
Carrier proceeded with the project, despite no agreement from the
organization.
The Board finds that the Carrier fulfilled the requirement of
the Note to Rule 55 as to notification. The fact that the
PLB No. 4768
Award No. 21
Page 3
particular instance of ditching work here under review was not
specifically listed is not found of consequence.
On the property, the Carrier offered the following explanation
of its decision to contract the work:
As was pointed out during the conference, the
Carrier has looked at the various types of equipment
available to perform this work. We have found that the
equipment we have contracted is the very best available,
all things considered. Although there [are] other types
available, they do not perform to our satisfaction and do
not meet our requirements. 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.
Loram has indicated that they would not lease the
Ditch Cleaner to the Carrier without their own operators.
They want to operate this very complex, high production
equipment and to maintain standards of performance and
protect their investment. At present there are only two
machines of this type in the U.S. that meet BN
requirements. Rather than just plow away material, it
actually removes material without fouling the track
structure and builds a new ditch. The machine
establishes a ditch profile with a smooth bottom which
provides for the efficient runoff of storm drainage.
Much of the work that this machine performs has simply
not been done in the past because of the difficulty and
expense of using more conventional equipment in these
areas. It has the capability of handling air dump cars
to deposit material in.
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.
PLB No. 4768
Award No. 21
Page 4
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.
A W A R D
Claim denied.
L
v
~~ ~,
HERBERT L. MARX, Jr, Chairman and Neutral Member
MARK J. CHAPPAUGH, Employee Member
W13AN
too
WENDELL A. BELL, Carrier Member
NEW YORK, NY
DATED:
LI'7.l-~l