C:\AWARDS\OUT\2-08053.htm

Form l NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8053
SECOND DIVISION Docket No. 7900
2-D&RGw-FO-t79

The Second Division consisted of the regular members and in addition Referee Irwin TAI, Lieberman when award was rendered.

System Federation No, 10, Railway Employes'

Department, A. F. of Z, C_ I. 0.

Parties to DisTnzte: ( (Firemen & Oilers)

(

( Denver ar.Ld Rio Grande Western Railroad Company

Dispute: Claim of Employes:

Under the current controlling agreement, the Denver and Rio

Grande Western Railroad Company improperly assigned the work of

cleaning

eight "tank"

freight

cars on the cleaning track at its

train yards 7_n Grand Junction, Colorado, on October 6, 7, 8, and

11,

1676;

to other than Firemen & Oilers,

2. That accordingly, the Denver and Rio Grande Western Railroad

Cozrpany be order ed to <:osr.oensate Laborer Tony Au.dino

hours

at the pro rat: rate, :=.:bore_r John Dickey 16 hours at the pro

rata rate., T~por. er Tony Garcia 12 hours at the pro rata rate, and

Laborer Jose Duran lL hours at the pro rata rate.

Fi ndings:

The Second Division of the .zdjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

On October 6, 7, 8 and 71, 1976 two employes of the Power Cleaning Service, a contractor, cleaned Eight tank cars at Carrier's Grand Junction Yard. Petitioner alleged that this was a violation of the Agreement.

Petitioner alleges that Carrier erred in assigning the work of cleaning tank cars in its train yard to a subcontractor rather than to Firemen and Oilers. It is argued that the cleaning of tank cars is generally recognized as work accruing to Firemen and Oilers; thus, the contractor performed work within the Scope of the Agreement. Petitioner states that Carrier had the necessary eclui2~nent and personnel to perform the disputed task and Claimants herein were rested and available for an overtime call.
Form 1 Award No. 8053
Page 2 Docket No. 7900 2-D&RGW-FO-`79 Carrier's version of the work in dispute differs sharply from that of the organization. Carrier asserts that far a variety of reasons, the work of cleaning the tank cars an Carrier's tracks was performed by the contractor under an arrangement with a shipper, Gary Western, Ine,, and Carrier was not involved in the arrangement. Carrier also states that the cars in question were ovrned by a third party and leased to the shipper; hence, Carrier had no control or jurisdiction of the tank cars, or their cleaning. In addition to the above, Carrier argues, inter alia, that the work of cleaning tank cars is not irork vhich by Agreement or practice belongs exclusively to Claimants. Carrier avers further that Petitioner has failed to carry its burden of proof in this d~_spute.

Although Carrier has made

series of arguments to support its position

that the Claim herein is ~~rithout merit, two of the arguments are clearly determinative oz'-' the dispute. First, Carrier's .point that the work in question i s not reserved exclusively to claimants a.Ppears to be correct. The Scope Rule of the Agreement does not provide for the reservation of the work exclusively to Petitioner and Carrier states that the cleaning of cars is performed by many craft:. Petitioner has offered no evidence to su ppoxwt a contrary view and Pi rely has asserted that the vrorli is theirs. Of equal significance is tile faces, unr chatted, that the particular work in question w~ds not under Carrier': control and that consequently it coiLtd not assign the world to its employes. There have been a bast of awards which have held that the contracting of work or the performance of work by other than Carrier employes is not a violation of the Agreement when such work was not for the benefit of Carrier, not at its expense, and not under its direction or control. In Third Division Award 20156, the Board stated:

"... In a long series of Awards going back to 1951, we have held consistently that nTork which is not for the exclusive benefit of Carrier and not -vrithin Carrier's control may be contracted out without violation of the Scope rule (see for example Awards

52+6, 6+99, 1275

and

19718)...rt

For the reasons indicated above the Agreement was not violated.

A W A R D

Claim denied. NATIONAL RAILROAD ADJUSTMIFT4T BOARD 13y Order of Second Division Attest: Executive Secretary National Railroad Adjustment Board -~ By~ psemar:~e rasc~ dn~s-trative Assistant Dated Lt Chicago, Illinois, this 15th day of August, 1979.