. BEFORE PUBLIC LAW BOARD NO. 5546
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
UNION PACIFIC RAILROAD COMPANY
Case No. 9
STATEMENT OF CLAIM: Claim of the Brotherhood that:
1. The Agreement was violated when the Carrier assigned outside forces
(Monroe Fence Company) to perform Bridge and Building
Subdepartment work (installed new chain link fence) in the breeze
way located on the south side between the Steel Car Shop and the
Store Department at Pocatello, Idaho between July 7 and 9, 1992
(System File R-53/920557).
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 twenty-four (24) hours' pay at the
B&B First Class Carpenter's straight time rate.
FINDINGS:
On July 7 and 9, 1992, the Carrier hired an outside contractor to install a fence
around an outdoor storage area 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
performed by B&B carpenters. Furthermore, the Organization argues that the Carrier did
not give the Organization sufficient notice of intent and therefore, was in violation of the
55(4 b-9I
Agreement.
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 that the Organization has met the requirements of
Rule 49 and properly notified the Carrier of its rejection of the Carrier's decision.
With respect to the substantive issues, this Board has reviewed the extensive
record in this case and we find that the Carrier notified the Organization on July 6, 1992
of its intent to solicit bids to cover the installation of a fence in the Freight Car Triangle
Area in Pocatello, Idaho. In that notice the Carrier notified the Organization's General
Chairman that the Carrier's Assistant Director of Labor Relations would be available to
conference the notice within the next 15 days.
The record further reveals that on July 14, 1992, the Organization responded to the
Carrier's notice with the usual objections to the subcontracting. The Carrier replied to the
Organization's response on August 14, 1992. In that reply, the Carrier contended that this
type of work had been traditionally contracted out by the Carrier. The Carrier's Director
of Labor Relations also stated that he would be willing to meet with the Organization to
discuss the notice.
The record reveals that the conference of this subcontracting took place on August
19, 1992.
Once again, we must find that the Carrier violated the terms and spirit of the
Agreement when it gave notice to the Organization of the proposed subcontracting on
2
July 6, 1992, actually had the work performed on July 7 through 9, 1992, and then did not
hold the conference until August 18, 1992. We must find that that notice was insufficient
to enable the Organization to meet with the Carrier in an effort to convince the Carrier
that the work should be performed by Carrier forces represented by the Organization.
This Board has held on several occasions in the past that the purpose of the rules
requiring the notice is to allow for the parties to meet to discuss the upcoming
subcontracting. The Organization has negotiated that language so that it may be afforded
an opportunity to convince the Carrier to have the work done by its own employees.
When the Carrier issues the notice a day or two before the subcontracting and does not
hold the conference until after the subcontracting is over, the language of the Agreement
is frustrated.
This Board has held that although it may be an imperfect solution, the only way to
give the Carrier an incentive to issue a timely notice to the Organization and allow for a
conference to take place before the subcontracting actually occurs, is to allow these
claims and have the Claimants made whole for work that was performed by outside
forces.
However, the problem for the Organization in this case is that there has been an
insufficient showing that the two named Claimants had a loss of work opportunity or a
loss of earnings due to the Carrier's failure to tender the required notice. The
Organization has not presented sufficient evidence that the failure of the Carrier to issue
the notice directly led to a monetary loss to the two named Claimants.
' 3
There is a long line of cases from the Third Division that precludes the Board from
providing claimants with pecuniary relief where they have not proved their loss of work
opportunity or loss of earnings due to the carrier's failure to tender the required notice. It
should be pointed out that there have been decisions that have held that if the carrier has
flagrantly and repeatedly failed to comply with Rule 52, monetary damages will be
imposed. Consequently, this Board urges the Carrier to make a better effort at meeting
the requirements of Rule 52 with respect to the notice.
AWARD
Claim sustained in part. The Agreement was violated when the Carrier failed to
furnish the Organization with the proper advance written notice. However, there will be
no monetary relief awarded.
2-2<,
Carrier Member
DATED:
a3
PIFTER . RS
Neutral Me er
Organrzation Member
DATED: ~ ~U