STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Beginning on November 14, 1966 and continuing through the summer of 1967, track maintenance, tie renewal and other track work on Track No. 1 at East Louisville, Kentucky and at other locations on the Louisville Division was performed by employes of the Marvin Vanhorn Construction Company, none of whom hold any seniority rights under the Agreement.
The contractor's forces consisted of one foreman and a varying number of laborers (usually six). Mr. W. J. Borden, a cut-back foreman, worked with the contractor's forces as a laborer. The Carrier also furnished and delivered all of the necessary materials used in the performance of said work and likewise provided all necessary equipment (trucks, crawler crane, swing crane, back hoe, tie remover and tie inserter), together with operators thereof.
The claimants have established seniority rights on the seniority district where the subject work was performed. They were available and fully qualified to perform all of the subject work.
In view of the circumstances involved, we see no basis for the claim, and it is therefore declined. We believe if you will refer to Award 15011 of the Third Division of the National Railroad Adjustment Board, you, too, will agree there is no basis for the claim.
"LOUISVILLE AND NASHVILLE RAILROAD COMPANY
Office of Director of Personnel
Louisville, Kentucky
February 17, 1967
Our letter of January 12, 1967, relative to the claim of R. E. Hale and six laborers for pay at their respective rates of pay, on account of the Marvin Vanhorn Construction Company servicing tracks and installing new ones, Louisville, Kentucky.
Nothing further was heard from the claim until President Crotty's letter of October 11, 1967, advising that he intended to file an ex parts submission.
Copy of the effective working rules agreement between carrier and its maintenance of way employes is on file with the Board and by reference is made a part of this submission.
OPINION OF BOARD: During the latter part of 1966, Carrier had some Maintenance of Way work in its Louisville, Kentucky Terminal performed by employes of the Marvin Vanhorn Construction Company. The employes of this contractor did not hold seniority rights under the Agreement.
Claim is made on behalf of Cut-Back Track Foreman R. E. Hall and six named Track Laborers that Carrier violated the Agreement when it made work arrangements with a contractor to service track, remove old ties, switch ties, and install new ones.
Brotherhood maintains that the section of track upon which work was performed is owned by the L. & N. Railroad Company and has always been maintained by employes of that Carrier who bold seniority on the L. & N. Railroad and are covered by the Maintenance of Way Agreement. It contends that since the Vanhorn Construction Company employes do not hold seniority on the L. & N. Railroad and that Claimants were not given an opportunity to bid on any of the positions under Rules 14 and 15 and Assignment Rule 16 of the May 1, 1960 Agreement, their seniority was ignored and they are entitled to compensation at their respective rates of pay.
Carrier denies the claim with the assertion that Claimants' seniority rights had not been ignored. It points out that Claimants were assigned to full time positions and suffered no loss of compensation because the contractor performed the work claimed. Furthermore, it argues that there were no cut-off employes holding seniority on the Track Department of the Louisville Division and therefore, the work was performed in accordance with Rule 2(f) of the Agreement which provides that the Railroad Company may contract work when it does not have adequate equipment laid up and forces laid off sufficient in number and skill with which the work may be performed.
The issue in this case has been before the Third Division Adjustment Board on numerous occasions. We follow along line of awards including numbers 16629, 16630 and 16733 and deny the claim.
FINDINGS: The Third Division of the Adjustment Board, 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