In the Matter of Arbitration between:
and
In the Matter of Arbitration between:
and
Case No,46 Award No. 46
This Decision resolves the Organization's claim as fQllows:
The Carrier Violated the Agreement on February 15, 2011 when it assigned outside forces instead of Work Equipment Subdepartment employe J. Guerrero to excavate existing light pole bases at the 801ft Avenue Depot (System File C110411/08-30-612 NRC).
As a consequence of the violaticm referred to in Part 1 above, Claimant J. Guerrero shall be compensated foreight (8) hours et his respective rate of pay.
Based on the record developed by the Organization and the Carrier, this Public Law Board (Board) finds the Parties herein to be a Ci:trrier and Employees Within themeaning of theRailway Labor Act, as amended, andthatthis Board has jurisdiction over the Parties and the dispute.
This dispute isbetween the Brotherhood of Maintenance of Way Employes Division
IBT Rall Conference (BMWE or Organization) and the Northeast Illinois Regional Commuter RaUroad Corporation (Metra or Carrier) (collectively the Parties). The dispute arises out of SMWE's claim that Metra violated the Parties' Agreement Rules 1, 2 and 3 when thet Carrier used an outside contractor, Century Contractors {Century), to perform work of the Work Equipment Subdepartment
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The facts and onproperty handling of BMWE1s c1aim are as follows:
The Parties agree on the 01aterialfacts. They disagree on the application of the Agreement RUies to the facts.
The Clafmant, Jose Guerro (Claimant or Guerro), is a Work Equipment Subdepartment employee who was on furlough at the time of events giving rise to the dispute. On February 15, 2011, for 8 hours, an outside contractor excavated light pole
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bases at the 80'4 Avenue Depot (801 Avenue). The dispute turns on two questiQn$:
whether the outside contractor was performing BMWE work c.overed by Rule 1(b) and whether Metra notified BMWE's General Chairman in advance. of the date of the. cont@oting transacticm pursuantto Rufe 1(c}.
On April 11, 2011, 6MWE Sllbmitted l claim assf.lf'ting t tthe February 15, 2011 80th Avenue light pol ex avatio.n Wa.$' Work Equ:ipment Subdepartment work and that Metra did not notify the General Chairman of the Carriers plans to contract out thework as farln advance aspractical and, in any event, n:ottess.that 15-days in advance pursuant to the Agreement.
On May 24, 2011, Metra's representative denied the cla.im asserting
thatthe work ... couldnotbeperformed by Metra employees because Metra does notown the proper equipment toperform the work safely and efficacy [sic}.
On July 25, 2011, BMWE appealed. the claimdenial. BMWE's appeal reiterates the claim. In addition, the appeal included two photographs: one photograph ofthe Century equipment p.erforming the sot11 Avenue excavation and another photograph of identical
Metra uipment parl(ed at Blue lsb;mcf. BMWE argued,
It]he Carrier's. insistence thatIt does not own the equipment necessary to perform the work in question appears to be baseless.
On August 3, 2011, Metra denied the appeal. The Carrier asserted that "thert is nothing in the rules cited that refers to work on bases for lights" and no evidence that
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BMWE "employees have customarily performed work on bases for lights in the pasr' and the"work historically hasbeenassignedtoemployees fromother crafts." Metra concluded,
[a]c:cordingly, tht:1 Carrier was not required to use the .claimant in this as.signment or provide the Organization with advance notice ofthe intent to havea contractor perform the work.
On March 2. 2.012, the claim was conferenced without resolutkm and BMWE
progressed the cla4m for resolution before this Board.
The Agreement Rules provide, in material part, as follows:
RULE 1, SCOPE.
(b} Employees includedwfthin theScope ofthis Agreement shallperform all work in connection with the construction, maintenance, repair, and disma11tUng of tracks, roadbeds,. structures, facilities, and appurtenances related thereto located on the right-of-way or used in the operation of the Carrier In the pertorrnance of suburban pas.senger service.
(c) ltisintentofthisAgreementforthe Carrier toutmze Maintenance ofWay employees under the rules of this Agreement to perform the work included within the Scope of the Agreement; however, It is recognized thatin certain specific in stances the contracting out of such work may be necessary provided one or more of the fo.llowing conditions are shown to exist:
(1} Special skills necessary to perform the work are not possessec.i by its Maintenance of Way employees.
(2) Special equipment necessary to perform the work is. not owned by the Carrier and/or is not avaifable to the Carrier for its use and operation thereof by its Maintenance of Way employees.
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In the event tfte Carrier plans to contract out work because of one or more
-of the criteria described above, it shallnotify the General Chairman in writlng as farm advance afthe date of the contracting trar1saction as ispracticable. and In any event, not less than ftfteen {15) days prior thereto. Such notification shall clearly set forth a description of the. work to be. performed and the basis on whichthe Carrier hasdetermined it is necessary to contract out such work according to the criteria set forth above.
The Carrier's initial claim denial asserts the defense that "Metra does not own the proper equipment'' fhis is a valid reason under Rule 1(c}(2) to contract out the work. However, BMWE's July 25, 201.1. photographic evidence proved that Metra. did own the identical equipment used by Century ta perform the work.
Metra's Aug!.lst 3, 2011cJaimdenialabandons the defense that the Carrier doesnot own theproperequipment. Instead, Metra defendsits contractingout ofthework because: the Scope Rule does not refer to work on light bases; there is no evidence the work is cusfomarily BMWE work; and the work historically has been assigned to otf'\er craft$, Metraargues thatsince it is notrequiredtousethe Claim.ant furthe work, the Carrier is not
required to provide advance nottce of contracting out
The Board does not agree..
Rule 1 plainly and expressly: states that BMWE crafts,
shallperform allwork in connection With ... dismantling ... appurtenances
. . used in the operation of the Carrier in the performance of suburban
passenger service.
Thesimple Merriam-Websterdictionary definition ofan appurtenance is"an object
that rs used with or for something." Black's Law Dictionary defines an appurtenance as
"something that belongs or is attached to something else."
Based on the plain andexprt}SS language oftl'le Rule 1{b) the BE>ard finds that the 80th Avenue light pole baseswere appurtenances used in the operation ofthe Carrier's suburban carrier service. Forthisreason, theFebruary 15,2011ligfttpolbase excavatfon was covered by Rule 1(b) as dismantling of appurtenances which should have been
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performed py the. plaimant under Rule 2 and 3. Moreover. the record is cle$r: that the. Cartier failed to complywith Rule 1(c}when it provided nonotice tothe General Chairman that Century was contracted to perform work covered by Scope Rule 1.
As remedy, for bothiAgreemem violations, the.Claimant is entitled to 8 hours pay
at the appropriate rate.
For the Organimion:
lda
Law Advocate
BMWE-IBT
The claim Is sustained.
NeutralMember:
·s;;;; Rogers, Esq.
Sean J. Rogers & A$$ociates, LLC Leonardtown, Maryland
Oecember21, 2016