NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Paul C. Dugan, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
THE BELT
RAILWAY
COMPANY OF CHICAGO
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement, when it assigned the
performance of track maintenance work on Sections A, C, D and E to
outside forces.
(2) Each of the employes assigned to Section Gangs A, C, D and
E be allowed pay at their respective straight time rates o; pay for an
equal proportionate share of the total number of man hours expended
by outside forces in the performance of the track maintenance work
referred to in Part (1) of this claim since August 15, 1968.
EMPLOYES' STATEMENT OF FACTS: The claimants, all of whom hold
seniority within the Carrier's Track Department, are the foremen and members of Section Gangs A, C, D and E. Track forces have traditionally performed all work in connection with building and maintaining the Carrier's
tracks.
In this case, the Carrier assigned the performance of routine trick maintenance work to C. N. Vilas Company. This work consisted of cleaning, track,
removing sand, weeds, etc. and was performed by six (6) m^n who hold no
seniority whatsoever within the Maintenance of Way and Structures Department. The claimants were ava-table and would have wfflingly performed this
work if the Carrier had so desired.
The assignment of this track work to outside forces was in violation of
the scope rule which reads in pertinent part:
"The rules contained herein shall govern the hours of service and
working conditions of the following employes in the Maistenance of
Way and Structures Department.
TRACK DEPARTMENT:
Section and Extra Gang Foremen
Assistant Section and Extra Gang Foremen
As suggested by us, we discussed this claim on February 19, 1969, at
which time the general chairman would not or could not present any basis for
the claim. We confirmed the conference on March 14, 1969, as follows:
"Mr. Nicholas Caputo, General Chairman
Brotherhood of Maintenance of Way Employes
5253 S. Kenneth Avenue
Chicago, Illinois 60632
Dear Mr. Caputo:
This will confirm our conference discussion of the claim submitted
by you because employes of the C. N. Vilas Co. allegedly performed
maintenance of way work for unspecified periods during the bainmen's strike.
I explained to you during the discussion of this case that the
work performed by these employes was not work exclusive to employes
covered by the Maintenance of Way Agreement and secondly, that
each and every employe who desired to work during this period of
time was worked and there was work to be performed that other
employes represented by you could have performed if they reported
for work.
My declination dated February 14, 1969 was affirmed.
Yours truly,
/s/ C. M. Crawford
Dir. of Personnel"
The next thing we heard about this claim was nine months later, when
on November 14, 1969 we received a copy of Mr. Crotty's letter dated November 13, 1969 to the Board that he "intends" to file the dispute with your Board.
In paragraph (2) of the notice of intent to file, the union gives as a starting
date of this claim August 15, 1968, which is not the same as the 66 days
retroactive date originally presented.
No work as alleged was ever performed by the employes of C. N. Vilas &
Company and none at all in cleaning yards on Section C was performed prior
to September 1, 1968.
OPINION OF BOARD:
On or about September 1, 1968, the Carrier
utilized employes of the C. N. Vilas and Company who were regularly
employed for the purpose of icing cars and related work, to perform track
cleaning work in Carrier's yards. Claim was filed on behalf of Carrier's track
department forces, whose traditional and customary duties of maintenance of
tracks and roadbed include the cleaning of tracks as hetc involved.
In view of the conflicting evidence and the failure of both sides to present
this Board with competent evidence upon which to render a just decision as
to ;.he actual merits, we will render neither a sustaining nor a denial Award,
but shall dismiss this claim because of a lack of the requisite body of evidence
essential for a sound adjudication of the basic issues.
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FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
Claim dismissed in accordance with Opinion.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of October, 1970.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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