PUBLIC LAW BOARD NO. 6538
Carrier File No. MWA93-12-17W
Organization File No. C-93-C100-87
BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES )
AWARD NO. 4
And ) CASE NO. 4
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
(Osmose Incorporated) to perform ordinary concrete repair work on
Bridge 443.06 at Red Oak, Iowa beginning August 5 through 24,1993.
(2) As a consequence of the aforesaid violation, District 4 B & B
Subdepartment employes M. C. Scott, E. L. Wolfe, J. L. Coy, C. O.
Hudson and D. R. Courtney shall each be allowed compensation at
their appropriate rates of pay for an equal proportionate share of the
total number of man-hours expended by the outside forces
performing the above-mentioned work beginning August 5 through
24, 1993."
FINDINGS:
Public Law Board No. 6538, 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.
On April 15, 1993, and again on July 9, 1993, Carrier provided notice to the
Organization advising of its intent to repair several bridges utilizing an epoxy
injection repair technique. A conference was held on the matter, during which the
parties were unable to agree to the contracting of the work. Thereafter, the Carrier
proceeded to contract with Osmose Incorporated to perform the work at issue.
The claim in this case involves the repair of one of the bridges identified in
the Carrier's notice, Bridge No. 442.06 at Red Oak, Iowa. The Organization
contends that much of the work did not involve epoxy injection but instead was
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ordinary bridge maintenance. The Organization argues that such work has
customarily and historically been performed by the Carrier's B & B forces and is
contractually reserved to the Claimants in accordance with the Scope Rule, seniority
provisions and classification of work rules. In addition, the Organization relies
upon the Note to Rule 55, which provides:
The following is agreed to with respect to the contracting of construction,
maintenance or repair work, or dismantling work customarily performed by
employes in the Maintenance of Way and Structures Department:
Employes included within the scope of this Agreement - in the Maintenance
of Way and Structures Department, including employes in the former GN
and SP&S Roadway Equipment Repair Shops and welding employes -
perform work in connection with the construction and maintenance or
repairs of and in connection with the dismantling of tracks, structures or
facilities located on the right of way and used in the operation of the
Company in the performance of common carrier service, and work
performed by employes of named Repair Shops.
By agreement between the company and the General Chairman, work as
described in the preceding paragraph which is customarily performed by
employes described herein, may be let to contractors and be performed by
contractors' forces. However, such work may only be contracted provided
that special skills not possessed by the Company's employes, special
equipment not owned by the Company, or special material available only
when applied or installed through supplier, are required; or when work
is such that the Company is not adequately equipped to handle the work...
The Organization asserts that the evidence submitted during the on-property
handling of this case firmly established that ordinary concrete bridge repair work
comprised the vast majority of the work performed by the outside contractor's
forces. Carrier forces were plainly capable of performing such work, thereby
indicating to the Organization that Carrier had no intention of engaging in a good
faith effort to reduce contracting and increase the use of BMWE forces to the extent
practicable, in accordance with the Note to Rule 55 and December 11, 1981 Letter of
Agreement, set forth in Appendix Y.
Carrier submits that the repair work involved here is the same as has been
done on almost 400 other Carrier bridges over the past twenty years. The
contractor performing the bridge repairs uses a specialized technique known as
epoxy injection to repair damaged concrete. Carrier argues that while BMWE
forces certainly perform general bridge repair, they have not performed the type of
specialized process at issue in this case. Further, Carrier asserts that the evidence
submitted on the property demonstrates that this process cannot be piecemealed in
an effective manner as it is integrated with various methods, all of which are used to
accomplish the epoxy repairs to the bridge.
PL B
Based on the Board's review of the voluminous record, we concur with
Carrier's position in this case. There is no dispute that BMWE forces perform
ordinary concrete repair work. Considerable evidence attests to that fact. On this
record, however, we are persuaded that the work performed was in conjunction
with the epoxy repairs to the bridge structure and did not constitute ordinary
concrete repair as claimed by the Organization. Nor are we persuaded that the
evidence supports the theory that work could have been assigned efficiently or
effectively on a piecemeal basis between Carrier forces and those of the contractor.
Our findings in this regard are bolstered by three previous awards on this
property. In Award No. 10 of Public Law Board 4768, as here, the Carrier had
engaged the service of Osmose Company to perform epoxy repair work identical to
the repair work performed in the instant case. In denying the claim, the Board
stated:
In this instance, it is the Carrier's position that the particular bridge work
herein required epoxy structural repair, a technique which has not been
employed by Carrier employees as part of their customary duty and which,
more significantly, has been performed by the Osmose Company on the
Carrier's property since 1976. While the Organization offered evidence that
Carrier employees have performed similar work and/or that the work is not
as complex as the Carrier would describe it, the fact remains that the
Organization has not demonstrated that the type of work involved here has
been `customarily performed' by Carrier employees.
In the second case, the Carrier engaged the same contractor, Osmose
Company, to perform the same kind of work that was performed at Red Oak, Iowa.
In Award No. 29 of Public Law Board 4768, the Board concluded:
The Carrier established information that for more than ten years the Osmose
firm had been employed by the Carrier 'to perform the internal structural
cement bridge repair using advanced epoxy methods and technology' and
that the process for `repair [of[ internal cracks in concrete structures had
never been performed by B & B forces. In the light of these facts, the Board
has no basis to determine a violation of Rule 99, which states in its
concluding section that `Nothing herein shall effect the existing rights of
either party in connection with contracting out.'
The third case, Award No. 36 of Public Law Board 4402, was presented with
essentially the same factual predicate. The Board again denied the claim, stating:
The conclusion reached in PLB 4768 is not palpably erroneous and is equally
applicable to the similar dispute in this case .... Indeed, the record
satisfactorily establishes that prior to the raising of this dispute and the
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PL -B
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dispute resolved by Award 10, the Carrier has contract out this type of work
for a number of years on its various divisions without objection.
Under the Note to Rule 55, the `customarily performed' requirement is a
threshold showing and, because this is a contract claim, that showing must be
made by the Organization.
In light of all the foregoing, we conclude that, as in the prior awards on this
subject, the Organization has not met its threshold burden of establishing that this
was work customarily performed by its forces. On the contrary, Carrier has shown
that there were specialized skills required for this project which were not possessed
by Carrier employees. The claim must therefore be denied.
AWARD
Claim denied.
ANN S. KENIS, Neutral Member
Carrier Member Organiz tion Member
William A. Osborn Roy C. Robinson
Dated April 10, 2003.
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