NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
William N. Christian, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
CHICAGO AND NORTH WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the effective Agreement when, in lieu
of using its own employes in the operation of a weed eradicator for
weed eradication work on the territories assigned to Roadmasters
C. G. Stockwell, J. W. Hendrickson, A. F. Trautman and C. E. Miller,
it assigned the work to the Chipman Chemical Company, whose employes hold no seniority rights under the provisions of this Agreement.
(2) Machine Operator Floyd Coaty be allowed pay at the weed
eradicator operator's straight time rate for a number of hours equal
to that consumed by the contractor's forces in performing the weed
eradicator operator's work on the territory under the supervision of
Roadmaster C. G. Stockwell.
(3) Machine Operators Adolph Overby, Durell Johnson, Howard
Weiss and Gary McCulloch each be allowed pay at the Weed Eradicator Operator's. straight time rate for an equal proportionate share
of the total man hours consumed by the contractor's forces in performing the weed eradicator operator's work on the territory under
the supervision of Roadmaster J. W. Hendrickson.
(4) Machine Operators Paul Foulon and Alfred Rask each be
allowed pay at the weed eradicator operator's straight time rate for
an equal proportionate share of the total man-hours consumed by the
contractor's forces in performing the weed eradicator operator's work
an the territory under the supervision of Roadmaster C. E. Miller.
EMPLOYES' STATEMENT OF FACTS: The work of eradicating weeds
upon this property has been traditionally and historically assigned to and
performed by the Carrier's Maintenance of Way Department employes.
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The claim is without merit and should be denied.
All information contained herein has previously been submitted to the
employes during the course of the handling of this case on the property and
is hereby made a part of the particular question here in dispute.
OPINION OF BOARD: Employes' contention that Carrier asserts a
defense not raised on the property is without merit.
The issue is whether Carrier violated the effective Agreement by letting
weed eradication work to an independent contractor. Weed eradication on
this proprty has been traditionally, historically, and ;exclusively performed
by Employes. Distinguish Award 6929 (Rader) where past practice justified
letting the work to an independent contractor. ,'
Carrier's defense is exception, based on claimed special skill required
in view of the dangerous nature of the chemical involved, and further based
on claimed special equipment required. Employes' position is that Claimants
have sufficient skill and Carrier has sufficient equipment. Carrier offers insufficient evidence of probative value to justify its action. Part (1) of the
claim should be sustained.
During the time involved all Claimants were fully employed by Carrier
(except one who was recovering from an operation); therefore, Claimants
suffered no pecuniary loss. Considering all of the circumstances of this case,
it is our opinion that Parts (2), (3), (4), and (6) of the claim should be
limited to payment by Carrier of one dollar to each named Claimant. Award
10730 (Ables).
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 respectively Carrier and Employes within the meaning of the Railway Labor' Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the,
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained in accordance with Opinion and Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 20th day of November 1963.