BEFORE PUBLIC LAW BOARD NO. 5546
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
UNION PACIFIC RAILROAD COMPANY
Case No. 5
STATEMENT OF CLAIM: Claim of the Brotherhood that:
1. The Agreement was violated when the Carrier assigned or otherwise
permitted employees of an outside contractor (Brennan Construction
Company) to perform Maintenance of Way and Structures
Department work of cutting out and removal of existing concrete,
preparing, forming, pouring and finishing of concrete in the construction of a 24' x 24' x 6" floor replacement in the Store "Department
Warehouse at Pocatello, Idaho on May 13, 14, and 15, 1992 (System
File R-14/920465).
2. The Agreement was further violated when the Carrier failed to
provide proper and timely advance written notice of its intent to
contract the specific work involved herein or to hold good-faith
discussions prior to the contracting transaction.
3. As a consequence of the violations referred to in Parts (1) and/or (2)
above, furloughed Idaho Division First Class B&B Carpenters W. S.
Wallace and T. D. Stalder shall each be allowed twenty-eight (28)
hours' pay at their straight time rates of pay.
FINDINGS:
On May 13, 14, and 15, 1992, the Carrier hired an outside contractor to remove an
existing concrete floor and to pour a 24' y, 24' x 6' concrete slab in its place.
The Organization filed the instant claim on behalf of Claimants Wallace and
Stalder contending that the Carrier hired an outside contractor to perform the work that
the Claimants were capable of doing, work that has been "customarily, historically, and
traditionally" been performed by B&B forces. Furthermore, the Organization argues that
i
55yWS
although the Carrier served notice on April 28, 1992, of its intent to hire an outside
contractor, discussions weren't held until June 8, 1992. Therefore, the Organization
argues, the Carrier went ahead and had the work completed before it afforded the
Organization the opportunity for a fair and timely conference.
The parties not being able to resolve the issues, this matter came before this Board.
This Board has reviewed the extensive record in this case and we find that the
Carrier did not live up to the requirements of the Agreement because a conference was
not held to discuss the proposed subcontracting until after the subcontracting work had
been performed. Therefore, the claim must be sustained.
The record in this case reveals that the Organization first received notice of the
work to be performed shortly after April 28, 1992. The Carrier, by its Superintendent of
Transportation Services, notified the General Chairman of the Organization on April 28,
1992, that the Carrier intended to "replace 23' x 20' x 6" concrete floor and all work
associated with replacement and installation of this concrete". In its notice, the Carrier
also stated to the Organization representative, "In the event you desire a conference in
connection with this notice, all follow-up contact should be with the Labor Relations
Department".
The Organization received the notice and promptly responded to it on May 5,
1992. In that 20-page letter, the Organization objected to the subcontracting for the usual
reasons. Carrier replied to the Organization's response on June 2, 1992.
The record reveals that a conference to discuss this subcontracting took place on
. 2
June 8, 1992.
The violation in this case occurred when the Carrier had the work performed by
the outside contractor on May 13, 14, and 15, 1992, long before the discussion of the
subcontracting took place. The parties' Agreement contemplates that the discussion of the
subcontracting will take place in advance of the actual work in order for the Organization
to have an opportunity to attempt to convince the Carrier to utilize the Carrier forces that
are represented by the Organization. If the Carrier has the work performed by the
subcontractor prior to the actual conference, then the terms of the Agreement have been
frustrated.
Since the Carrier did not allow a conference to take place prior to the actual work
performed by the subcontractor, this Board finds that the Agreement was violated and the
claim must be sustained.
AWARD Claim sustained.
Carrier M em
DATED:
eutr Member
O anizatio Mem r
DATED: ~ -