PUBLIC LAW BOARD NO. 7201
(Brotherhood of Maintenance of Way Employes
PARTIES TO THE DISPUTE:
(and
(
(Soo Line Railroad Company
((former Chicago, Milwaukee, St. Paul and
(Pacific Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The Agreement was violated with the Carrier assigned
outside forces (Hy-Shine, Inc.) to perform Bridge and Building
Sub-department work (paint and related work) on the lower
floor of the 8-Spot Overhaul Building
in
St. Paul Yard on
October 12, 13, 19, 20, 26, 27, November 9, 10, 16 and 17,
2002, instead of Messrs. S. DeJarlais, S. Berger and L.
Helland (System File C-40-02-C080-1218-00228-075 CMP).
(2) The Agreement was further violated when the Carrier failed
to furnish the General Chairman with an advance written notice
of its intent to contract said work as required by Rule 1 and
failed to enter into good-faith discussion to reduce the use of
contractors and increase the use of the Maintenance of Way
forces as set forth in Appendix I.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimants S. DeJarlais, S. Berger and L.
Helland shall now each be compensated at their respective
straight time rates of pay for a proportionate share of the two
hundred forty (240) total hours worked by the outside forces."
The Board, upon consideration of the entire record and all of the evidence,
finds that the parties are Carrier and Employee within the meaning of the Railway
Labor Act, as amended; that this Board is duly constituted by Agreement; this
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
Page 2 PLB 7201
Case No. 7
Claimants to the instant dispute have all established and hold seniority in the
Maintenance of Way and Structures Department, Bridge & Building Subdepartment. At the time of the instant dispute, all were assigned and working their
respective positions on St. Paul B&B Crew No. 47R.
Beginning on October 12, 2002, the Carrier assigned outside forces (HyShine, Inc.) to perform preparatory work and painting on the floor of the 8-Spot
Overhaul Building in the St. Paul Yard, each worker expending 8 hours per day.
The Contractor's employees acid washed, rinsed, and painted the floor, applied
sand to create a non-skid surface and applied a second coat of paint. The work
commenced on October 12, 2002 and continued on October 13, 19, 20, 26, and 27,
November 9, 10, 16 and 17, 2002.
The Organization contends that the Agreement was violated when the
Carrier contracted the preparatory work and painting of the floor of the 8-Spot
Overhaul Building in the St. Paul Yard, which is work that is properly reserved to
the Organization. First, it claims that the Carrier did not provide adequate Notice
to the Organization as required. According to the Organization, the Carrier had
customarily assigned work of this nature to the Carrier's Maintenance of Way
Employees. The Organization further claims that the work in question is consistent
with the Scope Rule. According to the Organization, the Carrier's Maintenance of
Way Employees were fully qualified and capable of performing the designated
work. According to the Organization, Claimants were available, qualified and
willing to perform the work involved had the Carrier rescheduled the work to which
they were already assigned. The Organization argues that because Claimants were
denied the opportunity to perform the relevant work, Claimants should be
compensated for the lost work opportunities.
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier claims that the work does not belong
to the Carrier's BMWE represented Employees under either the express language
of the Scope Rule or any binding past practice. In addition, the Carrier contends
that the work is specialized and BMWE forces do not have the ability to perform
such work. Because the relevant work is outside the scope and expertise of
Organization forces, the Carrier contends that it was not required to send Notice to
the Organization.
Appendix D, Article IV of the May 1968 National Agreement indicates as
follows:
In the event a carrier plans to contract out work within the scope of
the applicable schedule agreement, the carrier shall notify the
General Chairman of the organization involved in writing as far in
Page 3 PLB ?201
Case No. 7
advance of the date of the contracting transaction as is practicable
and in any event not less than 15 days prior thereto.
If the General Chairman, or his representative, requests a meeting to
discuss matters relating to the said contracting transaction, the
designated representative of the carrier shall promptly meet with him
for that purpose. Said carrier and organization representatives shall
make a good faith attempt to reach an understanding concerning
said contracting, but if no understanding is reached the carrier may
nevertheless proceed with said contracting, and the organization may
file ... claims in connection therewith.
Nothing in this Article IV shall affect the existing rights of either
party in connection with contracting out. Its purpose is to require the
carrier to give advance notice and, if requested, to meet with the
General Chairman or his representative to discuss and if possible
reach an understanding ..."
Having reviewed the instant case, this board finds that the Carrier did not
provide to the Organization the advance Notice required. The work in question was
arguably scope-covered and at a minimum, the Carrier should have provided Notice
to the Organization before contracting out the work. Such a requirement must have
been fulfilled by the Carrier in order to sustain its position. "... If the Organization
has established that BMWE-represented Employees have, at times, performed the
disputed work, then advance Notice is required even if Organization forces have not
performed the work to the exclusion of other crafts or contractors." Third Division
Award 36516 (Kenis, Referee 4/23/03) See Also Third Division Award 36514 (Kenis,
Referee 4/23/2003)
See Also
Third Division Award 36292 (Mittenthal 10/28/02)
Thus, the Claim will be sustained.
As a remedy, due to lost work opportunities, Claimants shall be made whole
for the actual number of hours of contractor-performed work at Claimants'
respective rates of pay.
Claim sustained.
Page 4
PLB 7201
Case No. 7
AWARD
Claim sustained.
Steven
Bierig
Dlgit.lly signed by Steven Swig
DN: c-Steven 87eng, o,
ofr=Attorney·Arbitratw-Mediator,
ematl=arb438@camostnet. c=US
Date: 7010.06.1416:74:49-05'00'
Steven M. Bierig
Chairperson and Neutral Member
Be HMnderson
er ember
Dated at Chicago, Illinois this 14th day of June 2010.
Roy Ro inson
Organi anon Member