AWARD N0. 6
NMB CASE NO. 6
UNION CASE NO. M-52-7125/7129
COMPANY CASE NO. 860225
PARTIES TO TAE DISPUTE;
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES
- and -
UNION PACIFIC RAILROAD COMPANY (Former
Missouri Pacific Railroad Company)
STATEMENT F CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when it
assigned outside forces to perform repair
work on concrete piers in the vicinity of
Sulphur Springs, Missouri at Mile Post 23
from August 4 through 8, 1986 and in the
vicinity of Annapolis, Missouri at Bridge
109.3 from August 11 through 16, 1986.
2. The Carrier also violated Article IV of the
May 17, 1968 National Agreement when it did
not give the General Chairman advance written
notice of its intention to contract out said
work.
3. As a consequence of the violations referred
to in Part (1) and/or (2) above, furloughed
B&B Mechanics C. L. Weidenbenner, H.V. Cox,
J. F. Adams and R. C. Siebert shall each be
allowed eighty (80) hours of pay at the B&B
Mechanics straight time rate and eight (8)
hours of pay at the B&B Mechanic's time and
one-half overtime rate."
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OPINION OF BOARD:
Claimants have established and hold seniority as B&B
Mechanics and were regularly assigned to B&B Gang 2045,
headquartered at Steeleville, Illinois. On July 28, 1986,
Claimants were furloughed as a result of force reductions.
The following facts are not in dispute. On August 4 through
8, 1986, an outside contractor (Chris Construction Company)
retained by Carrier performed repair work on concrete piers in
the vicinity of Sulfur-Springs, Missouri on the DeSoto Division.
On August 11 through 16, Carrier assigned the same outside
contractor to perform similar pier repair work on a bridge in
the vicinity of Annapolis, Missouri. Four (4) Chris Construction
Company employees performed the work which required a total of
three hundred fifty-two (352) hours to complete.
On September 9, 1986, the Assistant General Chairman
submitted a claim asserting:
1'...Claimants were furloughed and had filed
their names and addresses in line with rule
2(J) for recall. They have not waived their
rights to work temporary or extra under rule
2(K). They were familiar with the work
performed by the contractors and were
available for said work but since Carrier
neglected to recall them for same it caused
'a loss of work opportunity' for claimants.'
It is our contention that certain rules of
our current working agreement have been
violated, especially-Scope, Seniority Datum
Rule (1), Seniority Rights Rule (2), Work
Week Rule (14), the National Agreement of May
17, 1968, Article IV, in that Carrier failed
to notify General Chairman of its intentions
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to contract out work, and.the December 11,
1981 'good faith' letter from C. I. Hopkins,
Jr. to reduce incidents of contracting our of
MofW work."
In denying the claim, Carrier's Regional Engineer conceded
that advance notice and opportunity to consult had not been
provided, but asserted that this was an unintentional "oversight"
and "insignificant" because the work in question was "not Scopecovered". Carrier also asserted that the work was performed with
specialized expensive equipment which the employees lacked
qualifications to operate and which Carrier could not justify
purchasing for infrequent use.
The Organization reply to Carrier's denial contended that:
"High pressure grouting is simply the latest
step in the evolution of processes (grout;granite, shotcrete) used to repair concrete.
It is applied with a pump in much the same
way as the formerly used materials and takes
no special skills or equipment that would be
unavailable to the Carrier. There is
absolutely no reason why the Carrier's B&B
forces could not have performed this work if
the Carrier had made a good-faith effort to
assign them thereto as contemplated by the
December 11, 1981 Letter of Agreement. The
requirement to 'assert good-faith efforts to
reduce the incidents of subcontracting and
increase the use of their maintenance of way
forces to the extent practicable' clearly
devolved upon the Carrier and the Carrier
failed to show that it make any effort
whatsoever to meet its obligation. If the
Carrier had made such an effort, the Carrier
would have found that the application of
epoxy requires no special expertise.
In that connection, the General Chairman supplied copies of
correspondence from Abatron, Inc., in which the manufacturer
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stated: "No special expertise is required to use ABO-JET.11 The
attachment further stated: "...Can be used without costly
injection, compression or other molding equipment. For Crack
injection use blend is poured into an air driven caulking gun
cartridge, which is placed into an air-driven caulking gun, spray
gun types are also used." The General Chairman went on to
contend that the cost of the aforementioned equipment "is nil -
compared to $100,00.00 as aileged.11
Further, the General.Chairman submitted:
"As for your statement that all Claimants in
this claim were fully employed throughout the
claim period and suffered no monetary loss, I
must disagree. Claimants were assigned to
B&B Gang 2045, and the gang was cut off on
July 28, 1987. Claimants filed their names
and addresses for recall per Rule 2(j), and
did not waive rights to work temporary or
extra work under Rule 2(k) of the current
working Agreement.- You have not shown me any
records to prove the claimants were working."
Finally, the Organization submitted numerous statements from
their members attesting to the fact that they had performed such
concrete bridge repair work in the past.
As this and innumerable prior boards of arbitration have
held, the Scope Rule under construction is considered to be
"general" in nature because it does not expressly describe and
reserve the disputed work to Agreement-covered employees to the
exclusion of all others. To that extent, custom, practice and
tradition of work performance take on greater significance.
Close review of the record evidence demonstrates a "mixed
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practice" of performance of this concrete bridge repair work both
by Agreement-covered employees and subcontractors. This is
insufficient to make out an independent violation of the Scope
Rule in the instant case. However, for purposes of Article IV of
the May 17, 1968 National Agreement, that history is sufficient
to trigger Carrier's responsibility to give notice and
opportunity to consult to the BMWE General Chairman in advance of
such subcontracting. See NRAB Awards 3-27636; 3-29007; 3-29003
and 3-29912. The contrary holding in PLB 4219-8, cited by
Carrier, misconstrues the majority line of cases and is just
plain wrong on the notice issue.
In this case, Carrier has advanced the affirmative defense
of lack of equipment and trained manpower, but those issues of
fact are strongly contested and far from definitively proven on
this record. Moreover, in addition to the lack of notice, there
is no indication that Carrier even attempted to comply with the
commitments contained in the December 11, 1981 Letter of
Agreement. What the results might have been if the issues of
equipment, expense and expertise had been fully explored before
subcontracting cannot now be known.
So far as this record shows, the violation of the notice
provisions is clearly proven, Claimants were furloughed and
unemployed on claim dates, and the time spent by subcontractors
employees is not contested. Based upon such a record,
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compensatory monetary damages clearly are appropriate. Along
history of Organization acquiescence to Carrier subcontracting
without notice the particular types of disputed work at isssue in
each case underlay the rational of Awards 3-28849, 3-29021 and 329792, which declined to award montary damages for proven or
admitted notice and consultation violations in "mixed practice"
situations. Instead, the Board put Carrier on notice that future
such failures to abide by Article IV and the December 11, 1981letter might well result in monetary damages. However, such
acquiescence or condonation is not proven regarding the
particular
work
at issue on the present record. Based upon all
of the foregoing, the claim is sustained.
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AWARD
1) Claim sustained in accordance with the findings.
2) Carrier shall implement this Award within 30 days of
its execution by a majority of the Board
Dana Edward Eis~; n
Dated at Ithaca. New York on July 23. 1995
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Union kember Company Member
Date a Dated a
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