' BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
STATEMENT OF CLAIM:
1. The Carrier violated the effective Agreement when it assigned the ,
work of welding and other related work at Denison, Texas, to a contractor,
The Holland Welding Company, whose employes hold no seniority rights under
the provisions of this Agreement, particularly Rule 6, Article
d
- Scope,
Letter No. 4 - DP-21, contained on Pages 40 and 41 and Article S, Rule 1 of
. the current Agreement. '
2. It is our claim that the Welding Department Employes, namely;
J. C. Griffin, C. C. Withrow, P. C. Harrell, IV. T. Click, H. B. Dorsey,
K. W. Richardson and IV. H. Schneickert, be allowed pay at their respective
straight time rate of pay for an equal proportionate share of the total
man hours consumed by the contractor's forces in performing the work referred
to in Part 1 of this claim.
3. That the senior Machine Operator, Mr. L. W. Ainsworth, be allowed
pay at his respective straight time rate of pay for an equal proportionate
share of the total man hours consumed by the contractor's forces in performing the work referred to in Part 1 of this claim.
4. That Track Laborers F. A. Jones, E. D. Jones, J. 0. Daugherty, J. L.
Jones, Leonard Coffman, N. A. Jones and R. F. Boney be allowed pay at their
respective straight time rate of pay for an equal proportionate share of
the total man hours consumed by the contractor's forces in performing the
work referred to in Part 1 of this claim.
S. That the Welding Foreman which shall be determined after the application
of Rule 1 of Article S is complied with, be allowed pay for an equal proportionate share of the total man hours consumed by the contractor's forces in performing the work referred to in Part 1 of this~claim.
6. That Track Foreman N. A. Jones be allowed pay at his respective
straight time rate of pay for an equal proportionate share of the total man
hours consumed by the contractor's forces in performing the work referred to
in Part 1 of this claim.
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OPINION OF BOARD: -In connection with its program of rebuilding its main line trackage,
Carrier in 1966, purchased some 35 miles of 115 pound rail for installation at three
locations. It decided to install the rail in continuous welded lengths, known as
"ribbonrail". To do this it was necessary to join some 4740 lengths of 39 foot rail
into continuous lengths of approximately 1400 feet each. In August 1966 Carrier
employed an outside contractor, the Holland Company of Chicago, Heights, Illinois, to -
do this work by a process known as "flash-butt" electric welding. Flash butt welding .
is a forging process by which two rail ends after being subjected to intense heat for
a period of time are fused together through the application of extreme pressure by
hydro-electric machinery. No metal is added as is done in the arc or acetylene process.
For flash-butt welding a special welding plant, complex and expensive is required.
Carrier had no such machine. Flash-butt welding had never been performed on Carrier's
property before and none of its employees had ever operated such equipment. To handle
the 1400 foot length of rail special equipment had to be prepared. This. was accomplished
by coupling together permanently twenty five coal cars with the ends removed and with
racks equipped with rollers installed for handling the rail. As each length of rail
was joined it was pushed by special hydro-electric machinery into the loading racks
as the welding progressed. All 'of the work involved was done. by employees of the
Holland Company. .
On November 8, 1966 the Organization filed the present claim on behalf of
the employes listed therein, charging that the contracting out of the welding to the
Holland Company was a violation of Article I, Rule 6 (Scope Rule), Letter No. 4 - DP-21
on pages 40 and 41, and Article S, Ruled of the Agreement. The Organization contends
that the work which was contracted out here belongs to welders by virtue of the Scope -
Rule and Letter No. 4, which it asserts makes it a part of the Agreement that all
welding on this property will be done by the welder group. It says that track welding
has always been done by the company welders. The Organization also asserts that the
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Carrier has failed to show that it was necessary to employ outside forces to ereld
the rail. It also says that.even if all of the work could not have been performed by
Maintenance of Way employes, they should have been assigned the parts they could have
performed.
The controlling issue presented by this claim is whether Claimants have any
contractual rights to the work involved. Primary reliance is placed upon the Scope
Rule. This rule is general is nature, listing positions without any specific
designations of items of work accruing to the positions. In a long line of Awards
the Third Division has held that such a rule does not of itself contract an exclusive
right to the performance of any work. Some eleven of these Awards were rendered in
claims arising between the present parties, and involving the identical scope rule
we have in this, case. They are 5869, 5870, 6151, 6190, 11477, 12098, 12236, 12425,
12502, 14313 and 14687. Under such a rule and in the. absence of any other rule in
the Agreement expressly granting particular work to employes they can establish a
right to the work .only by showing that the work has, in the past, been consistently
performed by the employes to the exclusion of others. Award 16112 (Third Division)
where Referee McGovern.said:
Confronted with such a general Scope Rule, it-is axiomatic
that not only does the Petitioner have the burden of proving by
a preponderance of evidence that the work involved has tradition- . -
ally and customarily been performed by them, but also that it
' constitutes work which they have performed to the exclusion of
others, including outside contractors.
The present Referee stated the principle as follows in Award 11081 (Third Division):
In order to establish a right to the work in question and
sustain the present claim, Petitioner.has the burden of proving
by specific evidence that it has been the practice for the work
to be performed exclusively by Maintenance of Way welders. h'hile
Petitioner alleges this, proof in support of the proposition is
wholly lacking.
Those words are peculiarly applicable here. The Organization has no concrete
evidence, much less a preponderance of evidence, tending to show that the work involved
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has in the past been performed exclusively by the employes represented here. It
has only unsupported assertions in letters from Claimants' representatives. Mere
assertions are not evidence and have no probative value. See Awards 11224, 11231
and 11834 of the Third Division. In fact the Organization has referred only to one
instance of alleged past practice where acetylene welding of rail was performed at
Hillsboro between 1951 and 1955.
In the handling of the claim
on
the property Carrier pointed out that this
welding had been done by the Oxweld Company, an outside contractor, and this was not
denied by the Organization. There is no indication in the record that any employe
of Carrier operated the machine used by the Oxweld Company at that time or what, if
any, of the welding work was done by Maintenance of Way employes. They apparently
did handle rail from loading racks to railroad flat cars. It is not disputed by
the Organization that flash-butt welding was a new type of process which pre,viously
had not been performed on this Carrier. Nor does the Organization claim that employes
of Carrier had ever done this type of welding. The only reasonable conclusion from
the record is that Claimants have established no right to the work through past
practice.
In support of its position that the work belonged to the Welder's classification the Organization relied especially upon two relatively recent Awards of the
Third Division: Awards 12632 and 13224. Neither is persuasive here. Both were on the
same Carrier and were specifically based upon a "Special Welders Rule" in the Agreement.
The Agreement between the present parties has no such rule. Furthermore, we do not
think Letter No. 4 (pages 40-41 of the Agreement) can be interpreted as granting
employes any exclusive right to welding on this property.
The Organization has contended that the Carrier must justify the contracting
out of the work and that it has not shown that use of an outside contractor was necessary.
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As tae said in an earlier Award this burden shifts to Carrier only after the
Organization has established an exclusive right to the work. It has not done that
in this case and no burden of justification rested upon Carrier. But even assuming
that such were the case Carrier's assertions which are not denied supply that
justification. It had neither equipment nor trained personnel for the flash-butt
welding. In such situations the Third Division has consistently held that work may
be contracted out. Carrier owned no electric welding plant of the type required. It
was an expensive and complex machine, which required for its operation specially trained
personnel.- There were no such personnel in Carriers employ. Because of problems
caused by expansion and contraction of steel.rail it was important to do the work
as quickly as possible and during the Fall of the year. This could be accomplished
only by contracting the work to an outside firm with equipment and personnel capable -
of doing the job in a limited time.
For the several reasons expressed above we find that Carrier did not violate
the Agreement by contracting out the welding work to the Holland Company.
A IV A R D.
The claim is denied.
Public Law Board No. 76
Roy R. Ray
Neutral Member and Chairman
A. J., unningha, A. F. Winkel
Employ Member . Carrier Member
Dallas, Texas
June 19, 1968 -