Award No. 11229
Docket No. MW-10710
NATIONAL RAILROAD ADJUSTMENT BOARD
Phillip G. Sheridan, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
STATEMENT
OF
CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the effective Agreement when beginning on or
about September 16, 1957 it assigned or otherwise permitted the work of
erecting a yard office building at Beardstown, Illinois to be performed by a
contractor's forces who hold no seniority under the Agreement.
(2) All B&B Sub-department employes holding seniority in Groups 1, 2,
3, and 4 on the Beardstown Division be allowed pay at their respective straight
time rates for an equal proportionate share of the total number of man-hours
consumed by the contractor's forces in the performance of the work referred
to in Part (1) of this claim.
EMPLOYES' STATEMENT
OF FACTS: The Carrier was in need of a
new yard office at its Beardstown Yards and, instead of arranging to have
such new building constructed and erected by its Bridge and Building Department forces, it contracted with the Butler Manufacturing Company to construct and erect a one-story gable type metal building which was twenty-four
(24) feet wide and fifty (50) feet long, to be partitioned into several rooms
and to be equipped with the usual windows and doors.
The Carrier's B&B forces were used to drive the piling for the building
footing, to install and construct the necessary concrete foundation and to
install the sub-floor and the finished floor for this building. The Contractor's
forces performed all steel work and metal work on this building.
Claim as herein was presented and progressed in the usual and customary
manner; the Carrier declining claim at all stages of progress.
The Agreement in effect between the two parties to this dispute dated
September 1, 1949, together with supplements, amendments and interpretations
thereto is by reference made a part of this Statement of Facts.
[637]
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able implication therefrom * * *", Since money awards of the National
Railroad Adjustment Board are reviewable by the Federal Courts, it should be
manifest that a sustaining award here could not be enforced in the manner
prescribed by the Railway Labor Act.
In conclusion, Carrier respectfully submits that:
1. The claim is barred under the provisions of Article 1(a) of the
August 21, 1954 Agreement because no individual has ever been named
as claimant.
2. Work of the nature involved in this dispute has never been performed by Carrier forces in the history of contractual relationship between the parties.
3. Both parties, by their conduct for more than thirty-six years,
during which five separate agreements were negotiated, have recognized that the work herein under discussion is excluded from the purview of the Agreement.
4. Awards cited herein, particularly Awards 5521 and 7600 involving contracted work on this property, clearly sustain Carrier's
position that the claim is totally without merit.
5. The disposition of claims involving all types of contracting
work subsequent to the date of Award 7600, as shown in Carrier's Exhibits 6 to 13 inclusive, proves conclusively that both parties recognize such work as being excluded from the agreement.
6. The action of Petitioner in serving Section 6 notice, immediately subsequent to the date of Award 7600, requesting a rule to
cover contracting out work, and President Carroll's explanation before
a Senate Subcommittee of the purpose of the proposed rule, clearly
bears out the fact that no prohibition against contracting out any work
exists in the current agreement.
7. The Federal Court decision identified as Carrier's Exhibit No.
14 holds that unless the employer expressly agrees with the union not
to contract out work, it does not violate the collective agreement to
have the work performed by outside contractors. That no such expression can be found in the agreement here is evidenced by Item 6 above.
With these irrefutable facts before it, the Board must dismiss the claim
.for lack of jurisdiction or deny it in its entirety for lack of merit.
* * * * * *
The Carrier affirmatively asserts that all evidence herein and herewith
submitted has previously been submitted to the Petitioner.
(Exhibits not reproduced.)
OPINION OF BOARD:
This claim is based upon an allegation that the
Carrier violated the Agreement by contracting out work in erecting a yard
office at Beardstown, Illinois. The Organization contends that this work was
reserved to them.
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The Carrier also contends that this claim should be dismissed because the
claim as presented does not comply with Section 1(a), Article V of the August
21, 1954 Agreement.
We have read all of the past awards presented by the respective parties
concerning the above procedural issue, and it is our opinion that the claim
as presented with respect to the Claimants involved is too vague and indefinite.
We cannot ascertain from this claim who the Claimants are and whether they
would at the time involved be a proper Claimant. There is nothing in the record
to show their employment status at the time the claim arose.
A recent award sustaining this view is 11066.
This claim is dismissed.
FINDINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and upon the whole record
and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectivly
Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has no jurisdiction over the
dispute involved herein.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD.
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 15th day of March 1963.