PUBLIC LAW BOARD NO. 6538
Carrier File No.
97-09-04AB
Organization File No.
C-97-CI00-50
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES )
AWARD NO.
2
And ) CASE NO.
2
BURLINGTON NORTHERN )
SANTA FE RAILWAY )
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside forces
(Judd Brothers Construction) to perform Maintenance of Way and
Structures Department Work (construct footings and a pad for a fuel
tank) in the Lincoln yards, Lincoln, Nebraska beginning May
19, 1997
and continuing.
(2)
The Agreement was further violated when the Carrier failed to make
a `good-faith' effort to reduce the incidence of subcontracting and
increase the use of its Maintenance of Way forces as required by
Appendix Y."
(3) As a consequence of the violations referred to in Parts (1) and/or
(2)
above, B & B employes F. S. Fankhouser, R L. Kuwamoto, R J.
Reimers, W. D. Brehl, W. J. Flentie, R G. Tayler, B. A. Sullerns, S.
McPherson and W. D. Timmerman shall now be compensated at their
respective straight time, time and one-half rates of pay for the hours
worked by the outside forces."
FINDINGS:
Public Law Board No.
6552,
upon the whole record and all the evidence,
finds that the parties herein are Carrier and Employes within the meaning of the
Railway Labor Act, as amended; that the Board has jurisdiction over the dispute
herein; and that the parties to the dispute were given due notice of the hearing and
did participate therein.
The Organization in the instant claim contends that Carrier violated the
Note to Rule
55,
Appendix Y and other Agreement provisions when it contracted
with a construction company for the construction of a new one million gallon fuel
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tank and failed to assign Carrier forces the work of pouring the footing and pad for
the tank. The record shows that Carrier provided advance notice of the project and
a conference was held at which the parties were unable to agree concerning the
assignment of different aspects of the project.
In order to prevail in this case, the Organization had to show as a threshold
matter either that the Agreement clearly reserved to the employees the right to the
work in question, or that they performed the work in accordance with custom and
practice. We find no express reservation of the work in question in the Scope Rule,
which, by its own terms, is general in nature. Equally important, no specific
evidence was presented to support the assertion of practice.
Instead, the Organization relied in particular on Rule 55 F, which states in
pertinent part:
F. First Class Carpenter.
An employe assigned to construction, repair, maintenance of dismantling of
buildings or bridges, including the building of concrete forms, erecting false
work, etc. He shall be a skilled mechanic in house and bridge work and shall
have a proper kit of carpenter tools sufficient to carry out the work
employed upon, except such tool as are customarily furnished by the
Company.
We are unpersuaded that the foregoing language reserves to the
Organization the work claimed in this case. Rule 55 F says that a First Class
Carpenter can build concrete forms; it does not say that Carrier carpenters pour
and finish concrete. Thus, Rule 55 does not lend support for the Organization's
claim.
As the Carrier correctly points out, there is also authoritative precedent
between these same parties holding that Carrier is not required to piecemeal a large
project in order to provide some portion of the work to BMWE represented
employees. Third Division Awards 34213 and 34217 are indicative of the cases
upholding this general principle. Moreover, Carrier has shown that it has
historically contracted out large new projects of a similar nature.
For all these reasons, the Board finds that the Organization did not establish
that Carrier violated the Agreement or that it failed to comply with the good-faith
provisions of the December 11, 1981 Letter set forth in Appendix Y when it
contracted with outside forces to construct a one-million gallon fuel tank. Even if the
concrete work for the new fuel tank could be considered independently from the
whole project -- and there is no evidence which suggests that such an arrangement
could have been undertaken -- the record does not contain substantial evidence that
concrete work is reserved to Carrier forces. The claim, therefore, must be denied.
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19 wd
a
AWARD
Claim denied.
ANN S. KENIS, Neutral Mem
.
Carrier Member Organ' ation Member
William A. Osborn Roy C. Robinson
Dated April 10, 2003.
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