NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20516
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis-San Francisco Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned or otherwise permitted other than scope
between Aurora and Verona, Missouri. (System File A-9416/D-7010)
(2) The Carrier also violated Article IV of the National Agreement
dated May 18, 1968 when it gave no notice whatever to the General Chairman
of its intention or plan to have said right-of-way fence constructed by other
than scope covered employes.
(3) Track Foremen M. R. Smith and J. L. Wilson and Section Laborers
R. A. Cordova, G. W. Bounous, R. C. Wilson, E. O.-Pippin, J. C. House, R. H.
Barnes and S. D. Anderson each be allowed 16 hours of pay at their respective
rates of pay.
OPINION OF BOARD: On July 12, 1972 Mr. Y. L. Reidle mailed notice to the
Carrier, requesting the Carrier to repair a right-of-way
fence. This notice was made pursuant to Missouri Law, Section 389.650 RS
(1969), which provides that the Carrier has thirty days to comply, and if
unable to do so, the adjoining property owner has the option of performing
the work and thereafter bringing a legal action against the Carrier to recover expenses. The Carrier
and sometime after August 14, 1972 Mr. Reidle commenced making repairs which
repairs were completed by October 1, 1972, requiring one hundred and forty
four man hours to complete. Subsequently, Mr. Reidle brought legal action
against the Carrier under Section 389.650 to recover his expenses.
The Claimants in this action are Track Department employes, who
contend the repair of the fence was work within the Scope of the parties
Agreement; and that such repairs, without notice to the General Chairman, was
a violation of Article IV of the May 17, 1968 Agreement.
In order to sustain the Organization's position on Claim (1), the
Organization must show that the Agreement clearly reserves to the employes
an exclusive right to the work in question, or, if not, then it must show
by probative evidence that the work in question has been exclusively reserved
to the employes by custom, practice and tradition, system wide. No exclusive
reservation of the work in question is found in the Scope Rule. Nor does the
record show exclusive reservation of the type of work to the employes by custom, practice and tradit
its burden of proof on this issue, we must deny Claim (1).
:ri
Award Number 20640 Page 2
Docket Number MW-20516
Article IV of the May 17, 1968 National Agreement states in
pertinent part:
"In the event a carrier plans to contract out work
within the scope of the applicable schedule agreement,
the carrier shall notify the General Chairman of the
organization involved in writing as far in advance of
the date of the contracting transaction as is practicable and in any event not less than 15 days pri
thereto
...."
Article IV is clear and unambiguous. It specifically stipulates that,
when the Carrier "plans" to "contract out" work within the Scope of the
Agreement, it must "notify" the General Chairman in writing at least (I5-)
days in advance of the "contracting transaction". The record is clear
that the Carrier did not "plan" to contract out the work in question.
Nor did the Carrier "contract out" the work. Since the Carrier did not
plan to contract out the work, it was impossible to "notify" the Organization in advance. Nor was th
Reidle. The very essence of Article IV is concerned with the contracting
out of work; and in this case there simply was no contracting out of work.
Necessary to any contracting out arrangement is a contract or agreement
between the parties. There was never any agreement between Mr. Reidle and
the Carrier concerning the essential elements of the fence repair job:
there was never any agreement on the quantity or quality of materials, the
rate for labor charges and completion time factors. Mr. Reidle unilaterally
commenced making repairs to the fence under rights given him by Missouri
law. This Board is bound by and restricted to the clear and plain meaning
of the Agreement of the parties.
Neither Awards 19899 nor 20158 support the Organization's contentions. In Award 19899, the Carri
Carrier had no agreement whatsoever with the adjoining property owner to
have the right-of-way fence repaired. In Award 20158 the Carrier contracted
with an outside company to perform ditching work; in the instant case there
was no contract involved.
While there is no Agreement support for the employes claims, there
is no economic advantage for the Carrier to allow the repetition of
such an event. In this case the Carrier was required to pay Mr. Reidle
for all of his expenses in repairing the fence. Further, inherent in the
statutory right of Mr. Reidle to bring legal action for repair expenses
would be the court enforceable right to also collect reasonable attorneys
fees for his law suit from the Carrier. Finally, the Carrier was required
to expend further resources for its own legal counsel in handling the matter.
The claims must be denied.
Award Number 20640 page 3
Docket Number MW-20516
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
That the Agreement was not violated.
A W A R D
Claims denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Ad-4
Dated at Chicago, Illinois, this 7th day of March 1975.