BEFORE PUBLIC LAW BOARD NO- 5546
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
UNION PACIFIC RAILROAD COMPANY
Case No. 1
STATEMENT OF CLAIM: Claim of the Brotherhood that:
1. The Agreement was violated when the Carrier assigned outside forces
(Pasley Construction Company) to perform Bridge and Building Subdepartment work (installing two foot [2] by eight foot [8'] fiberglass
sheeting over existing windows) on the Maintenance of Way Repair
Shop at Pocatello, Idaho beginning March I 1 through April 1, 1992
(System File S-694/920367).
2. The Agreement was further violated when the Carrier failed to make a
good-faith attempt to reach an understanding concerning said
contracting as required by Rule 52(a).
3. As a consequence of the violations referred to in Parts (1) and/or (2)
above, B&B Carpenter T. D. Stalder and furloughed B&B Carpenter
W. S. Wallace shall each be allowed one hundred twenty-eight (128)
hours' pay at the B&B First Class Carpenter's straight time rate.
FINDINGS:
On January 14, 1992, the Carrier advised the Organization that it intended to
contract out repair work that would be performed on the Pocatello Maintenance of Way
Repair Shop in Idaho. The Organization raised an objection to the use of an outside
contractor and requested a conference.
On February 13, 1992, a conference was held to discuss the Carrier's plans to use
an outside contractor to replace and weatherproof the windows at the Pocatello repair
shop. The Organization argued that Claimants Wallace and Stalder were "available, fully
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qualified and willing to expeditiously perform the B&B work in question". In addition,
the Organization contended that under the Scope rules, the work at issue should have
been performed by Maintenance of Way employees.
The Carrier argued that both Claimants were fully employed at the time of the
work in question and, therefore, did not
suffer any
loss as a result of the subcontracting.
Furthermore, the Carrier argued that this type of work has been traditionally contracted
out and "since the work is not Scope covered, Rule 52 does not restrict the right of the
Company to subcontract".
On March 11, 13, 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30, 31, and April 1, 1992,
the Carrier assigned the work to an outside contractor despite the Organization's
objections.
The parties not being able to resolve the issues, this matter came before this Board.
This Board has reviewed the procedural argument raised by the Carrier and we
find it to be without merit. We find this case is properly before this Board for a ruling on
its merits. There is no evidence in the record that the Carrier raised this procedural issue
on the property. Moreover, the record does contain a June 11, 1992, letter from the
second Vice General Chairman of the Organization rejecting the June 4, 1992 Carrier
response to the Claim.
With respect to the substantive dispute, this Board has reviewed the extensive
record in this case and we find that the Organization has failed to meet its burden of proof
that the Carrier was in violation of the various rules and agreements when it
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subcontracted the work in question. Therefore, the claim must be denied.
In this case, there is no question that the Carrier gave the Organization adequate
notice on January 14, 1992. Although the Organization complains that the notice was
insufficient, this Board disagrees.
In its letter dated January 14, 1992 to the Organization's General Chairman, the
Carrier stated in its first paragraph:
This is to advise of the Carrier's intent to solicit bids to cover the
replacement and weatherproof sealing and window covers on the west and
east sides of the Pocatello Maintenance of Way Repair Shop.
This Board finds that that notice, which includes an invitation to have a conference
over the proposed subcontracting within 15 days, is sufficient to comply with the
requirements of Rule 52 of the Agreement.
This Board also finds that the Organization received that notice because it
responded to it on January 21, 1992. The Carrier replied to the Organization's response
on February 3, 1992, and a conference was held on February 13, 1992.
Although the parties were unable to reach an agreement at the conference, this
Board finds that the Carrier acted within its rights when it subcontracted the replacement
and weatherproof sealing work. We find that the Carrier has submitted sufficient proof
that the same type of work has traditionally been contracted out by the Carrier. It is true
that the work is very similar to work that is sometimes performed by members of the
Organization. However, the Carrier has a well-known and accepted past-practice of
subcontracting and there is no restriction in Rule 52 that prohibits the Carrier from
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subcontracting the work involved in this case.
Moreover, the Organization has not shown that it exclusively has performed this
type of work in the past. As a matter of fact, the Carrier submitted records of numerous
incidents of similar repair work that was performed by subcontractors on Carrier
property.
This Board has reviewed the extensive previous decisions of the Third Division
relating to subcontracting between these parties, and we must find that based on the
evidence submitted in this case, and the principles that have been developed in previous
Board awards, the Organization has not made out a sufficient showing of a violation to
warrant any relief. We specifically find that in this case, the notice was not incomplete
and there was no bad faith bargaining on the Carrier's part.
AWARD
Claim denied.
Y
ETER R. E
Neutral Me
iv,
Carrier Member Organization [ember
DATED:
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DATED:
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