PARTIES TO THE DISPUTE:
Brotherhood of Maintenance of Way Employees
and
Chicago and North Western Transportation Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the agreement when it assigned the
work of removing its East St. Paul Enginehouse to outside
forces (Carrier's File $1-19-146).
(2) Foreman T. P. Anderson, Assistant Foreman F. Timmers,
Machine Operator J.P. McCormick and Carpenters K. Weber
and J. Vossen each be allowed pay at his repsective
straight time rate of pay for an equal proportionate
share of the total number of man hours (176) expended
by outside forces in the performance of this work.
AWARD NO. 54
CASE NO. 47
OPINION OF BOARD:
In March 1976 Carrier's Assistant Chief Engineer-Maintenance notified
the Organization's General Chairman of intention to contract out certain
work described as follows:
Demolish the Transportation Company's round house at
Payne and Bush Streets in East St. Paul Yard area.
The work will include the removal and hauling away of
all debris.
Following a conference requested by the General Chairman pursuant to Rule 1(b),
Paragraph 3 of the Agreement, Carrier subcontracted.the work in question over
the objections of the Organization.
In this claim the Organization maintains that the work of dismantling
the round house is work expressly covered by the Scope Rule and that there
4
E 1~
was sufficient skill, equipment and material available for Carrier to have
assigned the work to Maintenance of Way Employees. Carrier resists the claim
on both fronts and asserts that demolition is not reserved to Maintenance of
Way Employees either by express language or practice and further than it did
not have adequate equipment readily available to do the job with Carrier's
forces.
Our Award No. 16 sets forth the operative principles despositive of this
case. The initial question for consideration is whether the disputed sub
contracted work falls within the express description of work reserved to
employees in the Maintenance of Way and Structres Department by Rule 1. The
controlling Agreement language reads as follows:
Rule 1 - Scope
(a) The rules contained herein shall govern the hours of
service, working conditions and rates of pay for all
employees in any and all subdepartments of the Maintenance
of Way & Structures Department, (formerly covered by
separate agreements with the C&NW, CStPM&0, CGW, FtDDK&S,
D"f&CI, and MI) represented by the Brotherhood of
Maintenance of Way Employees.
(b) Employees included within the scope of this Agreement
_in the Maintenance of Way and Structures Department shall
perform all work in connection with the construction,
maintenance, repair and dismantling of tracks, structures
and other facilities used in the operation of the Company
in the performance of common carrier service on the
operating property. This paragraph does not pertain to
the abandonment of lines authorized by the Interstate
Commerce Commission. (Emphasis added.)
At bottom line the answer to the central question turns upon whether
the words "...all work in connection with the ...dismantling of ...structures"
encompasses the tearing down and hauling away of the old round house. Giving
those words of description their plain and ordinary meaning, we must conclude
that they do clearly and unambiguously cover the work in dispute. Reinforcement for this conclusion is found in the clear language of Rule 3 Classification-
3
Rule - Classification of Work .
(b) An employee directing the work of men and reporting
to officials of the Company shall be classified as a
Foreman.
(c) An employee assigned to assist a Foreman or Track
Supervisor in the performance of his duties shall be
classified as an Assistant Foreman.
(e) An employee assigned to construction, repair,
maintenance or dismantling of buildings, bridges or
other structures including the building of concrete
forms, etc., shall be classified as a B&B Carpenter.
(j) An employee qualified and assigned to the operation
and servicing of
machines used
in the performance of
Maintenance of Dray and Structures Department work shall
be classified as a Machine Operator.
Carrier argues that this project involved demolition of the structure with
a wrecking ball and therefore cannot be considered dismantling. But the
Rule does not address methods and "demolition" is defined as "to pull or
tear down (a building, etc.)". Webster's New World Dictionary of the English
Lan uage, 1968. We cannot avoid the conclusion that in the context of this
case "dismantling" is synonomous with "demolishing". Since the work is
covered expressly by the clear contract language we have no recourse to
past practice regarding subcontracting of such work. See Award 3-180064.
Carrier has the burden of proving that the subcontracting of Rule-covered
work was necessitated under the criteria set forth in Paragraph 2 of Rule 1(b).
At best, the record evidence is ambivalent or tends to favor the Organization's
assertion that Carrier did have the equipment and manpower but chose to
utilize it elsewhere. In that connection we quote from the May 21, 1976
letter of the Assistant Chief Engineering-Administration to the General
Chairman:
4
...As you indicated, we do have certain
equipment
on
the Division we could gather
from
various places and
find qualified personnel to operate this equipment.
However, the equipment we do have available is not the
type of equipment that can handle such a project efficiently and in a safe manner. The only type end loaders
we have are the Pettibone speed swings and they are not
the heavy duty type that can be efficiently used on a
project such as this.
Cranes required for this project would have to be offtrack with a long boom and capable of utilizing a heavy
wrecking ball at the end of the boom. Most of the offtrack cranes we have on the Division and on the System
are bantam cranes and do not have the capacity to handle
such a project. We do have one LS-90 crane that would
be capable of wielding a wrecking ball; however, it is
continuously engaged in doing other work such as picking
up and loading rail left on right-of-way from welded
rail jobs and normal rail replacements. It is presently
programmed to work well into the Winter months. We do
have three heavy duty dump trucks assigned to the Twin
Cities Division; however, they are located at outlying
points and utilized primarily by track forces on a consistent basis. To take these trucks away from the Track
Maintenance forces would handicap the track maintenance
program. We do have one D-6 dozer with front end loader
that is capable of doing certain portions of this type
of work, but this machine is busy elsewhere and by itself
could not carry out such a project:...
Carrier clearly has managerial discretion to deploy its equipment and forces
elsewhere on the property but it cannot then rely upon a bootstrapping argument of lack of availability because of such deployment. See Awards 3-13832,
3-15497, 3-21678. The clear and unambiguous contract language requires that
this claim be sustained.
FINDINGS:
. Public Law Board No. 1844, upon the whole record and all of the evidence,
finds and holds as follows:
1. that the Carrier and Employees involved in this dispute are, respectively, Carrier and Employees within the meaning of the Railway Labor Act; and
2. that the Board has jurisdiction over the dispute
H. G. Harper,
EmploI
ee Member
Dated:
S-/t
S
involved herein;
3. that the Agreement was violated.
AWARD
a
Claim sustained.
Dana E. Eischen-,--,Ckurman
le
R. W. Schmiege, Carrier 4fember
