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BEFORE PUBLIC LAW BOARD NO. 5546
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
. and
UNION PACIFIC RAILROAD COMPANY
Case No. 8
STATEMENT OF CLAIM: Claim of the Brotherhood that:
1. The Agreement was violated when the Carrier assigned outside forces
(Brennan Construction Company) to perform Bridge and Building
Subdepartment work (framing in five [5] doors) in the breezeway
located between the Steel Car Shop and the Store Department
Building at Pocatello, Idaho between July 9 and 15, 1992 (System
File R-61/920587).
2. The Agreement was further violated when the Carrier failed to
furnish the General Chairman with a proper advance written notice of
its intention to contract out said work and failed to make a good-faith
effort to reduce the incidence of contracting out scope covered work
and increase the use of their Maintenance of Way forces as required
by Rule 52(a) and the December 11, 1981 Letter of Understanding.
3. As consequence of the violations referred to in Parts (1) and/or (2)
above, furloughed B&B Carpenter W. S. Wallace and B&B Carpenter
T. D. Stalder shall each be allowed forty (40) hours' pay at the B&B
First Class Carpenter's straight time rate.
FINDINGS:
On July 9 and 15, 1992, the Carrier used an outside contractor to frame door
openings at the Signal Shop at Pocatello, Idaho.
The Organization took exception to the use of an outside contractor and filed this
instant claim arguing that this type of work has historically and customarily been
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performed by B&B carpenters.
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. The Carrier was well aware that the Organization rejected its
response and was continuing this case through the claim procedure.
With respect to the substantive issue raised in the claim, this Board finds that the
Carrier issued its notice advising the Organization`s General Chairman of its intent to
solicit bids to cover the construction of a concrete dock ramp, extension of existing dock
and ramp, insulation of overhead door and various items of related work at the Signal
Shop at Pocatello, Idaho on July 2, 1992. In that notice, the Carrier's Assistant Director
of Labor Relations stated that he would be available to conference the notice within the
next 15 days in accordance with Rule 52 of the Agreement.
The record reveals that the Organization responded to the Carrier's notice on July
7, 1992, raising the usual objections. The Carrier replied to the Organization's July 7,
1992, letter on July 14, 1992, stating essentially that this type of work had traditionally
been contracted out by the Company. In its July 14, 1992, letter the Carrier's Director of
Labor Relations indicated that he would be willing to meet in conference to discuss the
notice.
The problem in this case is that the Carrier actually had the work performed on
July 9 and July 15, 1992. According to the Carrier's submission, it had two subcontracted
men work a total of 10 man hours on July 9 and then two men work a total of 13 man
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hours on July 15, 1992. Obviously, there had been no opportunity for the Organization to
meet and discuss the proposed subcontracting out as is contemplated by the Agreement.
There is no question that the Carrier retains a broad right to use subcontractors
despite the numerous objections by the Organization. However, the rules that have been
negotiated by the parties specifically envision that the Carrier will give notice to the
Organization with sufficient time to allow the Organization to meet with the Carrier to
discuss it. In this case, because of the Carrier's late notice the case was not conferenced
until July 22, 1992, thirteen days after the work had started and seven days after the work
had been finished.
This Board has held on several occasions in the past that if the Carrier fails to live
up to the notice requirements, it will be responsible for making the Claimants whole for
the work that was assigned to the subcontractors. Although this is not necessarily the
best solution to these cases, it appears the only way to give the Carrier an incentive to
follow the terms and spirit of the Agreement and meet with the Organization prior to
contracting out of the work.
The problem for the Organization in this case is that there is a long line of Third
Division awards that precludes this Board from providing the claimants with pecuniary
relief where they have not proved a loss of work opportunity or loss of earnings due to
the carrier's failure to tender the required notice. Although the Organization has argued
that there has been a significant reduction of rosters in Idaho, that is not enough to justify
the award of monetary damages in this case. The record reveals that the Claimants were
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fully employed and suffered no loss of wages. Consequently, although the Carrier was
guilty of a serious violation of the Rules in this case, this Board is without the authority
to issue monetary damages to the two Claimants listed in the claim.
This Board does remind the Carrier, however, that there is some language which
allows the award of pecuniary relief where the carrier has "flagrantly or repeatedly failed
to comply with Rule 52." This Board fmds that there is a very important reason for the
requirement of the conference before the subcontracting takes place; and if the Carrier
continues to ignore the conferencing language of the Rule, this Board will not hesitate to
award pecuniary relief in the future.
AWARD
Claim sustained in part. The Carrier was in violation of the Agreement. However,
there will be no monetary damage warded.
PETER tg! MEYERS
Neutral Member
arrier Member Organization Member
DATED: DATED:
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