NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 28
Carrier File No. 3MWB-88-12-06
Organization File No. T-D-406
STATEMENT OF CLAIM
1. The Agreement was violated when the Carrier
assigned outside forces (Loram Maintenance of Way, Inc.)
to perform shoulder ballast cleaning work between
Dilworth, Minnesota and Bismarck, North Dakota from July
5 through August 7, 1988 (System File T-D-406/3MWB 88-1206).
2. The Agreement was further violated when the
Carrier failed to give the General Chairman proper
advance written notice of its plans to contract out the
aforementioned work, in accordance with the requirements
of Note to Rule 55 and Appendix Y.
3. Because of the violation referred to in Part (1)
above, Section Foremen D. L. Karch and J. E. Hanson and
Group 2 Machine Operators R. E. Lammer, J. A. Vacha, R.
L. Mammenga and M. E. Nogowski shall each be allowed pay
at their respective rates for an equal proportionate
share of the one thousand one hundred fifty-two (1,152)
straight time hours and five hundred eighty-eight (588)
overtime hours expended by the outside forces from July
5 through August 7, 1988.
F I N D I N G S
This dispute is similar to that reviewed in Award No. 21,
involving the contracting of work to the Loram Company, except
PLB Bo. 4768
Award No. 28
Page 2
that the equipment used here is for shoulder ballast cleaning and
undercutting, rather than for ditching work. The same procedure of
notification and conference was undertaken here as related in Award
No. 21.
Without reference to other arguments raised by the parties,
the Board concludes that this dispute centers, as does Award No.
21, on that portion of the Note to Rule 55 which sanctions
contracting in instances requiring "special equipment not owned by
the Company". The record indicates that the Loram equipment
represents technological capacities not available through the use
of equipment available to Carrier employees. While the particular
functions of shoulder cleaning and undercutting and the replacement
of ballast are performed by Carrier employees, this does not
require the carrier to deny itself the opportunity to have these
functions performed in a more technologically advanced manner. The
Board is persuaded that the use of the Loram equipment comes within
the purview of the Note to Rule 55 exceptions.
In support of this conclusion is Public Law Board No. 4402,
Award No. 20 (Benn), which reads in pertinent part as follows:
Considering the above evidence regarding the type of
machinery at issue and its function, we find that the
Plasser Undercutter is not owned by the carrier; is not
the precise type of machinery that is ordinarily operated
by the Machine Operators; performs more complex functions
in the cleaning of ballast than the machinery owned by
the carrier and operated by the employees-particularly
the cleaning and replacement of the ballast as opposed to
the mere removal of the ballast; and such machinery is not
available for lease without use of contractor forces. Under
the facts of this case, we therefore find the Plasser
Undercutter to fall under the "special equipment not owned by
the Company" factor set forth in the Note to Rule 55. We
further find that by using an outside contractor in these
circumstances where the machines were unavailable for leasing
without the contractor's forces, the carrier did not violate
the terms of the December 11, 1981 letter which requires "the
use of maintenance of way forces to the extent
practicable, including the procurement of rental equipment and
operations thereby by carrier employees".
Claim denied.
HERBERT L. MARX, Jr, Chairman and Neutral Member
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MARK J v,/SCHAPPA'UGH, Employee Member
MA&
WENDELL A. BELL, Carrier Member
NEW YORK, NY
DATED:
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