NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILWAY COMPANY
AWARD NO. 25
Carrier File No. 4WWB 89-02-17
Organization File No. T-M-640
STATEMENT OF CLAIM
1. The Agreement was violated when the Carrier
assigned outside forces (Century Fence Company) to
construct four strand barb wire right of way fence on
each side of the right of way from Mile post 12.3 to Mile
Post 19.3 near Boyleston, Wisconsin on the Wisconsin 1st
Subdivision beginning on September 28, 1988 and
continuing.
2. As a consequence of the aforestated violation,
Messrs. D. J. Phaller, J. A. Sigfrids, D. C. Anderson, B.
V. Paulson, E. E. Rolson, R. E. Lorimor, M. J. Amecki, D.
R. Grubba, D. H. Ostman, R. E. McConnell, Jr., S. M.
Nelson, M. S. Johnson, J. L. Thompson, J. D. Schrader, M.
A. Lees, E. R. Schrader, J. L. Parker, K.M. Kvale, R. A.
Jarvi, R. R. Watten and P. A. Hellerud shall each be
allowed an equal and proportionate share of the total
amount of hours worked by the contractor's forces,
payable at their current applicable straight-time and
time and one-half rate of pay, beginning on September 28,
1988 and continuing until the contractor is removed from
the property.
F I N D I N G S
This dispute concerns a single portion of the work involved in
a project to relocate and change a line of trackage near Boylston,
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Wisconsin. The contracting of a major portion of this work was
reviewed in Award No. 14, which is incorporated herein by
reference. In Award No. 14, the Board reviewed the applicability
of the Note to Rule 55 and supported the Carrier in its position
that the overall project could properly be undertaken by outside
forces.
In this claim, the Organization concerns itself solely with
one portion of the work -- that of construction of 14 miles or
right-of-way fence in connection with the overall project.
Award No. 14, and other Awards of this Board, discuss the Note
to Rule 55 in general and specifically the argument concerning
"customary" or "exclusive" performance of specified work, and such
need not be repeated here. The dispute may be best addressed by
accepting the Carrier's four questions as the "Issues To Be
Resolved", which are stated as follows:
1. Is the claim barred from further handling
because of untimely filing?
2. Is the Carrier required to "piecemeal" a project
in order to ensure Maintenance of Way involvement?
3. Is the work of construction of right-of-way
fence within the Scope of the Agreement?
4. Damages
The Carrier notes that the claim was initiated on November 15,
1988 and referred to initiation of fence work 11[b]eginning on
August 29, 1988". The Carrier thus finds the claim untimely as to
the 60-day limit of Rule 42. In later stages of the claim handling
procedure, the organization contends that the date was in error and
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reference should have been made to September 28, 1988. Since there
is no question as to the nature and timing of the fence work
itself, the Board finds no material substance to the Carrier's
position.
Other Awards, and specifically Award No. 14, conclude that a
carrier need not "piecemeal" a contracted project where such would
be impractical and/or inefficient. Here, however, the project was
divided between outside forces and Carrier forces, as indicated in
Award No. 14. Thus, the question here is not whether division of
the work is required but simply whether one more aspect of the work
(fencing) should have been assigned to Carrier forces.
The Organization demonstrated on the property that the work of
fencing is performed by Maintenance of Way forces, not
"exclusively" but certainly with sufficient frequency to be
considered "customary".
Not covered in the carrier's four questions is the concern of
the timing of the work, which the Carrier contends was required to
be completed by November 1, 1988 prior to adverse weather
conditions. The Board is persuaded that the fencing work could
have been accomplished by Carrier forces if such had been -
determined in advance. As justification for this conclusion, the
Board notes, as pointed out by the organization, that the fencing
work was not in fact completed by November 1 and that it had been
assigned by the major contractor to a subcontractor as a separate
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As to damages, the Board does not accept as a defense that
Maintenance of Way employees were otherwise assigned during the
period in question. However, the claim for a portion of the time
at premium rate is excessive, since it cannot be assumed that the
work, if assigned to Carrier forces, would have been performed
during overtime hours.
A W A R D
Claim sustained to the extent provided in the Findings. The
Carrier is directed to place this Award into effect within 30 days
of the date of this Award.
HERBERT L. MARX, Jr, Chairman and Neutral Member
MARK J-. HAPPAUGH, Employee Member
WENDELL A. BELL, Carrier Member
NEW YORK, NY
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