AWARD NO. 7
NMB CASE NO. MW-32153
UNION CASE NO.
COMPANY CASE NO.
PUBLIC AW BOARD NO. 6086
PARTIES TO THE DISPUTE
:
TERMINAL RAILROAD ASSOCIATION _
OF ST. LOUIS
- and -
BROTHERHOOD OF MAINTENANCE .
OF WAY EMPLOYEES
STATEMENT OF CLAIM
: -
1) The Carrier violated the Agreement when it assigned or otherwise allowed Union
Pacific Railroad Company forces to perform Maintenance of Way work in
connection with laying 136 pound continuous welded rail (CWR) on the High Speed
55 and 56 tracks from 23rd Street to 14th Street, St. Louis, Missouri and laying 115
pound CWR at various locations on the Terminal Railroad property in Illinois on the
Eads Main between CP Junction and Old Cabin No. 1 at CD Yard and North
Approach to the MacArthur Bridge between Q Tower and Trendley Avenue beginning September 1, 1993 and continuing (System File 1993-37%013-293-14).
(2) As a consequence of the violation referred to in Part (1) above, furloughed Track
Subdepartment employes A. Ramirez, W. Wiley, J. King and Messrs. R. Gartner, J.
Derochie, W. Green, J. Wilson, J. Pfeiffer, R Gray, D. Stogner, R Gower, R Glenn,
J. West, W. Bailey, L. Crouch, D. Matthes, O. Rodriguez, C. Jefferson, J. Headrick,
P. Poss, R. Brown, C. Laden, S. Gray, L. Gates, W. Edwards, R. White, Sr., E.
Schuessler, J. Fenton, T. Allen, C. Perkins, R Stewart, R. McCranie, M. Hudson, E.
Myers, C. Perry, .A. McCarter, J. Mason, T. Harris, C. Owens, C. Wicks, R. Kurtz,
T. Reed, M. McCann, D. Schindler, J. Gatlin, M. Kayser and M. Mitchell shall each
be allowed eight (8) hours' pay at their respective straight time rates and two (2)
hours' pay at their respective time and one-half rates for each of their regularly
assigned workdays the Union Pacific forces were allowed to perform the work in
question, and they shall each be allowed ten (10) hours' pay at their respective time
and one-half rates for each of their regularly assigned rest days the Union Pacific
forces were allowed to perform the work in question beginning September 1, 1993
and continuing.
AWARD NO. 7
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OPINION OF BOARD
: For reasons set forth in Award No. 2 of this Board, Carrier's motion
to dismiss this claim for alleged improper filing of the Notice of Intent is denied. The material facts
underlying this claim are not in dispute. By letter dated August 18, 1993 Carrier's Engineer of
Track gave the Organization's General Chairman written notice, citing Article IV of the May 17,
1968 National Agreement, of Carrier's intent to contract out to the Union Pacific Railroad Company
(hereinafter referred to as "UP") the work of laying approximately 2.3 miles of continuous track
("CWR") on TRRA Tracks 55 and 56. Specifically, the work in St. Louis consisted of laying new
136 pound CWR on approximately 1.3 miles oftrack, and in Illinois,115 pound CWR, for a distance
totaling one (1) mile. In the notice, Carrier stated that the work was to be contracted because its
forces "were not well suited for a project of such magnitude."
By letter dated August 20, 1993, the General Chairman requested and was granted a
conference at which the situation was discussed on September 7, 1993. The undisputed record
shows that during the September 2,1993 telephone conversation in which the General Chairman and
Chief Engineer Trice setup that conference, during that conference on September 7, 1993, in the
claim dated October 14, 1993, and at all stages of handling of this matter, the General Chairman
informed Carrier that the UP gang was already performing the work which was to be the subject
matter ofSeptember7,1993conference.Thespecificdetailsofthat"good-faith"aspect of the dualbasis claim
filed on October 14, 1993 are set forth by the General Chairman in the claim letter as
follows:
AWARD NO. 7
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On September 1, 1993 and continuing, during the hours of 7.30 a.m. through 5.30 each day and-on
rest days the carrier contracted with the Union Pacific Rail Gang consisting of about Sixty (60) men
to lay rail on tracks 55 and 56, 23rd street to 14th street, Eads Main, and North Approach to the
MacArthur Bridge. This gang consisted of small machines, such as spike pullers, spikers, tie
handlers, Burro Cranes . . . .I informed you in my letter dated September 6, 1993 and during our
phone conversation on September 2, 1993 that this gang had already started work on these locations
on September 1, 1993 and this was a clear violation of proper notice and time limits. I also confirmed
this at the conference on September 7, 1993.
Close examination ofthe record evidence shows that the Carrier never responded to, let alone
refuted, that aspect of this dual-basis claim at any level of handling. Accordingly, it is undisputed
on this record that the contracted-out work described in Carrier's notice of August 18, 1993 was
already in progress and nearly one-third completed by the time the Article IV conference was held
on September 7, 1993. As this Board held in Award No. 2, this is hardly in keeping with the "good
faith" obligations imposed upon Carrier by the literal language of the second paragraph of Article
IV of the May 17, 1968 Agreement, which was jointly reaffirmed in the December 11, 1981 BergHopkins Letter.
It is well-recognized that merely cosmetic compliance with the notice and/or "good-faith
discussions" mandates in a fait accompli contracting-out situation is contrary to the mutual intent
set forth in
Article IV of the May 17, 1968 Agreement and the December 11, 1981 Berg-Hopkins
Letter.
See
Third Division Awards 32748, 31867, 31756, 31599, 30976, 30977, 27614 and 26593.
On the basis of Carrier's proven failure to comply with those critical contractual commitments prior
to performance of the disputed work by the outside forces, we shall sustain this claim. In doing so,
we award monetary damages to the named Claimants, with such damages calculated and apportioned
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UNION CASE N9.
COMPANY CASE NO.
in accordance with the precedent set in NRAB Third Division Awards 23928 and 31756 between
these same Parties.
AWARD
1) Claim sustained.
2) Carrier shall implement this Award within thirty (30) days of its execution by a
majority of the Board.
Dana Edward Eischen, hamnan _ .....
Signed at Spencer, NY on August 26, 2000_
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Union M tuber ~~3~ ~~ Company Member
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