F oxm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9141
SECOND DIVISION Docket No. 9196
2-BN-CM-182
The Second Division consisted of the regular members and in
addition Referee John B. IaRocco when award was rendered.
( Brotherhood Railway Carmen of the United States
Part
ies to Dispute: ( and Canada
(
( Burlington Northern Railroad Company
Dispute: Claim of Employee:
1) That the Burlington Northern, Inc. violated the terms of the controlling
agreement, specifically Rules 27 and 83, when they employed and/or
permitted an outside welding contractor to perform welding duties at
Seattle, Washington King Street repair track on January
4~,
1980.
2) That accordingly, the Burlington Northern, Inc. be ordered to
additionally compensate Carman Welder S. Stackhouse in the amount
of eight (8) hours at the punitive rate of time and one-half (1 1/2)
rate of pay for service claimed on 7:00 AM through
3:00
PM, January
4,
1980.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employe or employee involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act
as approved June 21, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Organization asserts that the Carrier either arranged with or improperly
permitted an outside contractor to perform welding repair work on Amtrak
Passenger Car No. 2053 on the Carrier's property at the King Street Station in
Seattle. According to the Organization, a certified welder employed by Commercial.
Welding Company was called to the Carrier's property an January
4,
1980 to
perform eight hours of welding work and such work is exclusively reserved to
Carmen by Rules 27(a) and
83
as well as by historical practice an this property.
The Carrier assigned several employes to observe the work as it was being
performed by the outside welder. The Organization has represented to this Board
that Claimant was not only available to perform 21e vork bsL- had-also quslified
as a certified welder.
The Carrier does not contest the Organization's contention that the disputed
work would ordinarily belong to Carmen pursuant to Rule
83
but defends the claim
on the basis that it has no control over the disputed work. The Carrier
maintains that Amtrak arranged for the outside contractor to perform the welding
Form 1 Award No. 9141
Page 2 Docket No. 9196
2-BN-CM-'82
work on Amtrak's equipment and solely for Amtrak's benefit. So the Carrier
reasons that since it lacked any authority to assign the work to Claimant (or
any other Carrier employe) the disputed work is outside the scope of the
applicable agreement. Alternatively, the Carrier argues that it did assign several
employes to watch the outside welder perform the work so that they could do
the work if similar situations arose in the future.
In our past decisions, this Board has followed the general proposition that
where the disputed work is not performed at the Carrier's instigation, not
under its control, not performed at its expense and not exclusively for its
benefit, the work may be contracted out without a violation of the scope clause
or the classification of work rule. Second Division Awards No. 8053 (Lieberman)
and No. 7833 (Weiss); and see Third Division Award No. 2061+x+ (Eischen).
However, the carrier retains sufficient control over the work if it actively
or affirmatively participates in the contracting out process when it knows the
work is otherwise covered by the applicable agreement. Third Division Awards
No. 23034 (Dennis) and No. 23036 (Dennis).
In this claim, we merely have the Organization's bare assertions that the
Carrier made a commitment with Commercial Welding Company to perform the
disputed welding work on January 4, 1980. The Organization has not presented
sufficient supporting evidence for this Board to conclude that the Carrier had
the authority to assign the welding work or that the Carrier actively participated
in arranging for the outside contractor to perform the work. The outside
welder repaired Amtrak equipment, at Amtrak's expense and the benefits flowing
from the outside contractor's services inured solely to Amtrak. There is also
no showing the Carrier participated in the selection of the contractor.
The Organization has asserted the existence of a contract between the
Carrier and Amtrak whereby the Carrier is to do certain repair work on Amtrak
equipment. But, the record does not disclose what rights, if any, Claimant or
other Carmen have under any agreement between Amtrak and the Carrier. Thus, we
must deny the claim for want of proof.
Our decision, however, is expressly limited to this particular occurrence
on this particular date. We note that the Carrier at least permitted other
employes to watch the welder perform the disputed work in anticipation of
providing similar welding service to Amtrak in the future.
A W A R D
Claim denied.
Form 1 Award No. 9141
Page
3
Docket No.
9196
2-BN-CM-`82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By _
Ros a Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th day of June, 1982.