PUBLIC LAW BOARD 5564

In the Matter of Arbitration betw'een:

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION - IBT RAIL CONFERENCE

and

NORTHEAST ILLINOIS REGIONAL COMMUTER RA.ILROAD CORPORATION

In the Matter of Arbitration betw'een:

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION - IBT RAIL CONFERENCE

and

NORTHEAST ILLINOIS REGIONAL COMMUTER RA.ILROAD CORPORATION

CaseNo.48

Award No. 48

THE ORGANIZATION'S STATEMENT OF THE CLAIM

This Decision resolves the Organization's claim as follows:

1. The Carrier violated. the Agreement begfnning on May 17. 19 and 20, 2011 when it assigned outside forces (John Bums and DTI) instead of Bridge and Building (B&B) Department employes to install screw and glue tactile tiles on platforms at the Joliet Union.Station on the Rock Island District (&ystem File C110713108..S0-616 NRC).

   
   

2. As a consequence of the violation referred to in Part 1 above, Claimants D. Brim, R. Ortiz and S. Zavala are each entitled to be compensated twenty (20)hoursat their respective straight time rates of pay.

   
   

   STATEMENT OF THE CASE

   
   

   Based onthe record developed bythe Organization andtheCarrier, this Public law Board (Board} finds the Parties herein tobe a Carrier and Employees within themeaning of the Railway Labor Act, as amended, andthat this Board has Jurisdiction over the Parties and the dispute.

   
   

   This disp.ute isbetweenthe Brotherhood of Maintenance of Way Employes Division

   - IBT Ran Conference (BMWE or Organization) and tne Northeast Illinois Regional Commuter Railroad Corporation (Metra or Carrier) (collecttvety the Parties). The dispute arises out of BMWE's claim. that Metra violated the Parties' Agreement Rules 1, 2 and 3

   
   

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   by having outside contractors install glue-and-screwtactile tiles atthe Joliet Union Station. Rock Island District (Joliet). Tactile tiles are installed along the platform surface edges as detectable warning surfaces for passengers standing or walking near the track.. BMWE maintains this work Js Bridge and Building (B&B) Subdepartment work.

   
   

   The facts are not disputed. The dispute turns oneach Parties• interpretationof the Agreement.

   
   

   The factsand onproperty handling of BMWE's claim are as follows:

   
   

   On November 10, 20091 pursuant to Rule 1, the Carrier notified BMWE thatit intendedto contract outthe construction of new platforms at the Heritage CorridorS•tion in Joliet The Carriers stated reasons for contracting outwere thatMetra employees did not possess the special.skills and the Carrier dld not own the special equipment for the

   work•• Relevant to thi$ dispute, thetnotice stated that the construction of the newplatforms

   included, ".Remove and re-place concrete panels and pre-cast concrete cu.rb units on the station side platform."

   
   

   On February 18, 2010, thePartiesCQnferenced on thesubcontracting notrce. on February 19, 2010, Metra sent BMWE a letter describing the conference, in materic1I part, as follows:

   
   

   During the conference, no specific objections were raised concerning the Carrier's intent to contract outthis work. It is understood, however, that the

   Organization retains the nght to raise objections based orr further review of

   the rnformatitm presented andto present claims based on devetopments

   during the actual performance of the work.

   
   

   On July 13, 2011, BMWI; submitted a claim on behalf of Claimants, D. Brim, R. Ortiz ands. Zavala, whowereon furlough atthetime oftheeventgiving rise to the claim. BMWE's claim asserts that onMay 17, 19 and 20, 2011 for 8 hours per day, the Carrier allowed outside contractors to install the screw-and-glue tactile tiles at the Joliet Union Station, Rock Island District. 13MWE asserted the Carrier violated Agreement Rule$ 1, 2 and 3 because the Carrier had not notified the Organization of the use ofa contractor for the work which Work Equipment Sub-Department employees normally perform. As

   
   

   
   

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   remedy, BMWE asserted the Claimants were entitled to compensation for 20 hours work or $504.00 each.

   
   

   On August 22. 2011, Metra denied the claim based on the Parties' February 18, 201o conference with BMWE. The Carrier ass.erted that at the February 18, 201o

   conference it properly notified BMWE of the Joliet contracting work in accordance: Witlt

   Rule t.

   
   

   
   

   Rules,

   On October 14, 2011. BMWE appealed the denial asserting that the Agreement

   
   

   specifically stipulates that. a good faith attempt to reach an agreement conceming contracting outwm be made and thatcontract employees willbe given preference to assignments. of work for which they are qualified and available.

   
   

   BMWE argued that Metra blatantly violated its obligation to engage in good faith discussions under Rule 1{c), andother Rules, when it allowed outside ontractor forces to perform the work at the Joliet project. BMWE argued as well that no special skiUs or equipment was required to perform the Jolietwork normally performed by BMWE forces.

   
   

   On October 28, 2011. Metra responded to BMWE's appeal asserting that its November 1o, 2011 notice c:1dvised BMWE of the earner's intent to.contract out platform reconstruction. Metra stated thatthe November 10, 2009 noticeprovidedageneral outline ofthe Jolietwork whilethe February 18, 201O conference Included a review ofthe detailed plans. In addition. Metra stated thatatthe conference BMWE was offered a copyof the detailed p1ans but declined. Metra attached a copy of the plans to its response to be

   Included in the record of on property handling. The attachment is entitled PROJECT SCOPE, and states, in material part, as follows:

   
   

   
   

   DISTRIBUTION OF WORK

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3. REMOVE GROOVED CONCRETE PANELS ON STATION SIDE PLATFORM AND REPLACE WITH iOPPING CONCRETE AND YELLOW TACTILE PANELS. THIS INCLUDES THE REMOVAL AND SUBSEQUENT REPLACEMENT OF THE EXISTING PRE,-, CAST CONCRETE CURB UNITS.

*

On April 4, 2012, the claim was· cimferenced without resolution and BMWE progressed the claim for resolution before this Boarc;t.

Relevant and material to this claim, Rule 1 states:

RULE1. SCOPE.

* *

1. Employees includedwithin the Scope ofthis Agreement shallperform all work in connection with the construction, maintenance. repair, and dismantling of tracks, roadbeds, structures., facilities, and appurtenances related thereto located on the right-of-way or usect in the operation of the Carrlerin the performan.ce of suburban passenger service.

   (c} It i$ intentofthis Agreement for the Carrier to utilizeMaintenance ofWay empfoyees under the rules ofthis Agreement tQ 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 following conditions are shown to exist

   1. Special skUls necessary to perform the work are not possessed

by its Maintenance of Way employees.

{2) Spe·cial equipment necessary toperform thework isnotowned by the Carrier andior is not a.vailable tQ the Carrier for its use and operation thereofby.its Maintenance of Way employees.

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{3) Time requirements exist which present undertakings not contemplate<:f py the Agreement that are beyond the capacity of its Maintenance of Way e ployees.

1. .Federal and State laws specffically require. the Carrier to submit such work. to public bidding.

   In the event the carrier plans to contract out work be.cause of one or more of thecriteria,describedabove, it shall notify the General Chairman.in writing asfarinadvance of the date of the contracting transaction as is practicable, and inany event, not les&: than .fift en. (15) days prior thereto. Such notification shall clearly set forth adescription of the work to be performed and the basis on whichthe Carrier ha& determined it isnecessary to contract outsuch work according to the criteria set forth above.

   an

   an

   If the General Chairman, orhisrepresentative,requestsa meeting,to discuss matters relating to the said contracting transaction, the designated representative.of the Carrier $hall promptly meet with him for that purpose and the parties :shall make a good faith effort to reach an agreement setting forth the manner in which the work will be performed. lt is understood that when conditions 3· and/or 4 are cited as criteria for contracting work, the Carrier, to the extent possible under the particular circumstances, shall engage its Maintenance of Way employees toperform maintenance work in the Maintenance of Way Department and construction work in the Track Subdepartment, with due .consideration given to the contracting out of construction work ln the Bridge and Building Subdepartment to the extent necessary. If no agreement is reached, the Carrier may nevertheless proceed with said contracting and tile OrgarHzatron may ffle and progress claims in connection therewith.

   * * * BMWE has the burden to prove the elements of its claim,

   BMWE e1ss rts installing the Joliet tactile tiles was within the Organization'sscope Qf work pursuant to Rule 1, BMWE asserts that Metra failed to notify the General Chairman of this specific B&B Subdepartment work and failed toprovidethe Organization with thedetailed plans of thework. In anticipation of Metra's defens . BMWE argues that

   
   

   
   

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   a Carrier defense that it is notrequired topiecemeal thework ofa larger project is frivolous and without merit.

   
   

   Metra asserts that BMWE has not met its burden of proof tQ prove au requisite elements of the claim. Metra argues BMWE was notified Of the Carrier$ intent to contract out Joliet platformworkon November 1012009. Then, Metra argues, the Parties met.in conference to discuss the details on February 18, 2010and at that conference BMWE declined totakecopies of the plans. Metra argues for these reasons alone the agreement was not violated and the:claim must be denied.

   
   

   Metra asserts that the Joliet platform work involved far more work than citedin the Organization's claim. Metta says that the tactile tile installation was only a small portion of the overall platform project which could not be separatedlnto smaller. fragmented and disconnected components. Metra argues BMWE's requestedremedy is notsupported by therecord or the Agreement. Accordingly, Metra concludes theclaim iswithout merit and must be denied.

   
   

   The on property record of the handling of this c;laim establishea that BMWE's General Chairmanreceived noti.ce of Metra'sintentto contract out the Joliet platform work on November 10, 2010. The recorda.Isa proves thatthe Organization andthe Carrier went overtheplans anddetails ofthe projectlnconference onFebruary 18, 2011. Furthermore, it was not until the Carrier started the Joliet project that BMWE presented this claim alleging a violation of Rule 1, but only for the. work of installing the Joliet platform tactile· tiles. Simply stated, BMWE raised no objection to the contracting out until the start of the project

   
   

   These unchalfenged facts do n<>t support a claim of violation of Rule 1(c) which is at theheart ofthe Organization's claim. fn addition, the facts establish thatcontract for the Joliet work must be reasonably considered as a whole and of significant scale to be beyond the skills and equipment of BMWE forces, In this regard, BMWE has presented no evidence to the contrary. BMWE's mere assertions of the Claim cannot be accepted as proof. The Claim must be supported with evidence andit is not.

   
   

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   , ,.

   M reo,ver. the Or9aniz tion seeks a remedy under the Agreement for only aportion ofthe wholeproject, theta le tiles installation, Based onthe scalff ofthecontract for the

   Joliet platform reconstructton, Metta Is not requited topiecemeal out portions ofthe Joliet platform project so BMWE employees couldperform thenarrowslice of wok ontiletactile tile instalt tion. (See:: Third Dlv1Sion SBA No.1048:, Award 161, Referee Hanft).

   
   

   Ba$ed on theenti.re record, the Bo;,1rd finds the Claim'mustbe.denied.'

   
   

   'AWARD

   
   

   

   Fr:

   Fr:

   The Claim is denied.

   
   

   organ o:

   
   

   

   

   

   Ryan ·. P:;c Board Advocate BMWE..:JBT

   
   

   

   Neutral' Member:·

   
   

   • SeanJ. og .

Sean J. Rogers & Associates, _LLC LeonardtC>wn;'Maryland December 21, 2016