NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 20822

THIRD DIVISION Docket Number CL-20715

William M. Edgett, Referee

(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

STATEMENT OF CLAIM: Claim of the Burlington Northern System Board of Adjustment (GL-7537)

1. Carrier violated the Working Agreement with an effective date of March 3, 1970, when, commencing on Tuesday, March 13, 1973, and continuing thereafter, it assigned to employes of another Company (Western Fruit Express Company) at Yardley Yards, Spokane, Washington, work which prior thereto was assigned to and performed by employes subject to the Burlington Northern Clerks' Working Agreement.

2. Carrier shall now compensate the senior three (3) extra list employes at Yardley Yard Office commencing Tuesday, March 13, 1973, and continuing thereafter until Carrier discontinues this violation of the Clerks' Agreement. On any day there is no extra list employe available, the senior available qualified assigned employe , at the Yardley Yard Office will be allowed the punitive rate of pay.

OPINION OF BOARD: Western Fruit Express, a separate corporate entity, had
arranged to have Carrier perform service for it in con
nection with its refrigerated cars. It later made other arrangements and
commenced performing the service with its own employees. This claim is made
on behalf of certain BN employees whose positions were abolished when Western
Fruit Express took its work back from BN.

This Board has had occasion to consider the contractual results flowing from a changed work situation such as occurred here in other cases (Awards No. 6839, 8076, 9762, 9580). The principle that Carrier cannot be found in violation of the Agreement when it does not have the right to control the work has been firmly established. In the instant case Carrier had no option. Western Fruit Expre not include Carrier's employees. Under the circumstances Carrier cannot be found in violation of the Agreement.

' Award Number 20822 Page 2

Docket Number CL-20715

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

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

' ATTEST: ,` !~t/-, /~,~,R.
Executive Sedretary

Dated at Chicago, Illinois, this 30th day of September 1975.