PUBLIC LAW BOARD NO. 7201
CASE NO. 12
PARTIES TO
jBrotherhood of Maintenance of Way Employes
DISPUTE:
ISoo
Line Railroad Company
1(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 (Arrow Crete) to perform Maintenance of Way and Structures
Department work (removal of debris and associated work) at parallel
concrete box culverts at Mile Post 175.35 on the Watertown Subdivision
beginning December 2 and continuing through December 10, 2002 instead of
Messrs. D. Davis, R. Bowers, R. Bean, G. Brinkmeier and K. Popp
(System File C-50-02-C080-2018-00228-0821CMP).
(2) The Agreement was further violated when the Carrier failed
to furnish the General Chairman with a proper advance written notice
of its intent to contract said work as required by Rule 1 and
when it failed to enter 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 D. Davis, R. Bowers, R. Bean, G. Brinkmeier
and K. Popp shall now be compensated `... for a proportionate amount
EACH of three hundred (300) hours at the applicable straight time rate of
pay and ninety-five (95) hours at the applicable overtime rate of pay ...'
(Emphasis in original)"
FINDINGS:
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
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Case No. 12
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
Claimants to the instant dispute have all established and hold seniority in the
B&B Subdepartment of the Maintenance of Way and Structures Department. At
the time of the instant dispute, all were assigned and working their respective
positions on the Watertown Subdivision.
By letter dated October 8, 2002, the Carrier informed the General Chairman
that the Carrier intended to subcontract work on the M&P Subdivision that is part
of the Portage Flood Control Project. The Notice indicated that the project was
being sponsored by the Army Corps of Engineers. The specifics of the project that
is relevant to the instant case are the excavation of a toe trench area and the disposal
of material. In addition, the Notice called for the installation of a geomembrane and
crushed rock cover covering 3400 square yards and the cleaning out of Culvert C210 under the Watertown Subdivision main track. Specifically, the Carrier
submitted that in order to complete this portion of the project, the Carrier would
have to lease a specialized piece of equipment, and utilize an operator trained for
said equipment, from GREX.
On December 2..7 and 9-10, 2002, the Carrier assigned outside forces (Arrow
Crete) to perform the removal of debris and associated work at the parallel concrete
box culverts at Mile Post 175.35 on the Watertown Subdivision. Five employees of
the Contractor worked a total of 300 straight time hours and 95 overtime hours in
the performance
of
these duties. The Organization has alleged, and the Carrier has
not disputed that the work did not involve the use
of
the specialized equipment that
initially had been suggested by the Carrier. It appears to be uncontested that the
Contractor's employees used shovels to dig out the debris from the culverts.
The Organization contends that the Agreement was violated when the
Carrier contracted the removal of debris and associated work 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. The Organization
specially alleges that while the Carrier went to great lengths to indicate to the
Organization that specialized equipment would be used, the Contractor in fact
never used said equipment; instead, employees with shovels were utilized to perform
the project. Further, 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. The Organization argues that because Claimants were denied the
opportunity to perform the relevant work, Claimants should be compensated for the
lost work opportunities.
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Case No. 12
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. First, the Carrier contends that it gave proper
Notice to the Organization of its intent to contract out the relevant work. 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.
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
advance of the date of the contracting transaction as is practicable
and in any event not less than IS 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 proper advance Notice that was required. This
Board notes that the Notice specifically indicated that the work would be performed
with a piece of specialized equipment that the Carrier did not own. In addition an
outside operator would be required to operate the specialized equipment. The
Notice and conference were premised upon this information. However, ultimately,
no specialized equipment was utilized; the project was performed by the
Contractor's employees working with shovels.
In the instant case, this Board finds that the Notice was faulty and did not
adequately appraise the Organization of the nature of the work. This Board has
determined that the Organization effectively did not receive Notice. While the
Carrier has argued that the Organization did not raise the issue of the faulty Notice
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Case No. 12
on the property, a review of the correspondence proves that the Organization did
property raise this issue. Thus, because the work in question was arguably scopecovered, at a minimum, the Carrier should have provided proper 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 4/23103) See Also Third Division Award 36514 (Kenis,
Referee 412312003)
See Also
Third Division Award 36292 (Mittenthal 10128102)
Thus, as a result of the faulty Notice, 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.
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PLB 7201
Case No. 12
AWARD
Claim sustained.
Steven
Bierig
Steven M. Bierig
Chairperson and Neutral Member
B rne Henderson
Tier Member
C'00
Y'
Dated at Chicago, Illinois this 14'h day of June 2010.
Roy R inson
Orga ration Member