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
(Century Fence) to perform Bridge and Building Subdepartment work
(construct a chain link fence and related work) upon the right of way in the
vicinity of Mile Post 107.1 on the Watertown Subdivision south of
Milwaukee, Wisconsin on November 29, 30, December 3 and 4, 2001 instead
of Messrs. R. Bowers, K. Popp, G. Brinkmeier and R. Bean (System File C42-01-CO80-1318-00228-066 CMP).
(2) The Agreement was further violated when the Carrier failed to furnish
the General Chairman with proper advance written notice of its intent to
contract said work as required by Rule 1 and failed to enter good-faith
discussions to reduce the use of contractors and increase the use of the
Maintenance of Way forces as set forth in Appendix I.
(3) The claim as presented by General Chairman M. S. Wimmer on January
16, 2002 to Engineering Services Manager R. Wedel shall be allowed as
presented because said claim was not disallowed in accordance with Rule
47(a).
(4) As a consequence of the violations referred to in Parts (1), (2) and/or (3)
above, Claimants R. Bowers, K. Popp, G. Brinkmeier, and R. Bean shall now
each be compensated for thirty-one and one-quarter (31.25) hours' pay at
their respective straight time rates of pay."
Page 2 PLB 7201
Case No. 8
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.
Claimant R. Bowers, K. Popp, G. Brinkemier and R. Bean have established
and hold seniority in the Bridge and Building B&B Sub-department. All were
regularly assigned and working positions in their respective classes on System B&B
Crew #47D and #46E on the date that the instant dispute arose.
The Claim was presented on January 16, 2002 on behalf of employees Robert
Bowers, Keith Popp, Greg Brinkmeier and Robert Bean for 125 hours total for
Carrier's assigning and utilizing an outside contractor to construct and erect
approximately 1000 feet of chain link fence upon the Carrier's right of way at Mile
Post 107.1 on the Watertown Subdivision on November 29, 30 and December 3 and
4, 2001. Carrier denied the Claim on March 13, 2002 confirming that Notification
was provided on March 24, 2000 and a conference was conducted with the General
Chairman. According to the Carrier, the fence was required for safety reasons and
as part of the settlement that led to the construction of the Pedestrian Underpass.
According to the Carrier, for safety and warranty reasons, it was necessary that
construction of the fence was handled by an outside company.
The Organization contends that the Agreement was violated when the
Carrier assigned Century Fence the work of constructing a chain link fence upon
the right of way in the vicinity of Mile Post 107.1 on the Watertown Subdivision.
The Organization claims that it was improper for the Carrier to contract out the
above-mentioned work, which is work that is properly reserved to the Organization.
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. The work
performed by Century Fencing falls within the jurisdiction of the Organization and
therefore Claimants should have performed said work. The Organization argues
that because Claimants were denied the opportunity to perform the relevant work,
Claimants should be compensated for the lost work opportunities. In addition, the
Organization claims that because the Claim was not responded to within the 60 days
required by Rule 47, the Claim must be allowed as presented.
Page 3 PLB 7201
Case No. 8
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier contends that the work contracted
out 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 takes the position that the Claim was responded to within the 60-day time
period and therefore, it is not procedurally flawed.
We have reviewed the language of Rule 47 which provides as follows:
Rule 47
Time Limit - Claims or Grievances
1. All claims or grievances shall be handled as follows:
(a) All claims or grievances must be presented in writing by or on behalf of
the employe involved, to the officer of the Carrier authorized to receive same,
within 60 days from the date of the occurrence on which the claim or
grievance is based. Should any such claim or grievance be disallowed, the
Carrier shall, within 60 days from the date same is filed, notify whoever filed
the claim or grievance (the employe or his representative) in writing of the
reasons for such disallowance. If not so notified, the claim or grievance shall
be allowed as presented, but this shall not be considered as a precedent or
waiver of the contentions of the Carrier as to other similar claims or
grievances.
In the instant case, we have reviewed the facts and find that the Carrier did
not respond to the Claim within the required 60-day period. The Carrier received
the Claim on January 18, 2002 and thus had until approximately March 18, 2002 to
respond. However, the Claim was not officially responded to until the conference
held on April 22, 2003, which was well beyond the required 60-day period. The
Organization produced documentation within the proper time limitation to prove
that the Carrier had not responded to the Claim in a timely manner. Therefore, the
Carrier was in violation of the language of Rule 47. Because it did not respond
within the 60-day period, the Claim shall be allowed as alleged. Claimants shall be
made whole. The Claim is sustained.
The Claim is sustained.
PLB 7201
Case No. 8
Claim sustained.
Steven
Bierig
Digitally signed by Steven 8ietig
DN: cnaSteven Bietig, o,
oo=Attomey- Atbittatot
Mediator,
enoail=at6438@mnxastne~ r-US
Date: 2010.06.1416:22:34-05'00'
Steven M. Bierig
Chairperson and Neutral Member
~arne Henderson
arrier Member
Dated at Chicago, Illinois this 14th day of June 2010.
zc
Roy binson
Qrga ization Member
