NATIONAL RAILROAD ADJUSTMENT HOARD
THIRD DIVISION
Irwin M. Lieberman, Referee
PARTIES TO DISPUTE:
Award Number 20945
Docket Number MW-20941
(Brotherhood of Maintenance of Way Employee
(Chicago and North Western Transportation Company
STATEM'M OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated the Agreement when it assigned or
otherwise permitted outside forces to perform construction and repair
work on the elevator track at Ashton, Iowa (System File
81-19-82).
(2)
The Carrier violated the Agreement when it assigned or
otherwise permitted outside forces to repair the "Old Elevator Track"
and the "Manning Track" at St. James, Minnesota (System File
81-19-83).
(3)
The Carrier also violated Article IV of the May
17, 1968
National Agreement when it did not give the General Chairman advance
written notice of its intention to contract said work,
(4)
Section Foreman W. E. Olson, Laborers R, T. Schvebach,
A. D. Chronister and Machine Operator C. Orimmius each be allowed pay at
their respective rates for an equal proportionate share of the total
number of manhours expended by outside forces in performing the work
described in Part
(1).e
(5)
Section Forman L. Tetz1off, Laborers E. Press, D. Anderson
and R. Fowler each be allowed peer at their respective rates for an equal
proportionate share of the total number of man-hours expended by outside
forces in performing the work described in Part (2).
OPINION OF
BOARD: The disputes herein are identical in all important
aspects with those considered recently by this Board,
involving the same parties, in Award -20895. In this dispute again
the Organization presented a prima facie case in support of its Claims;
the Carrier's defense was predicated on the allegation that the property
on which the work had been performed was leased to certain industries.
Petitioner, in letters dated November
27, 1973
stated, inter alia:
'However Mr. Hellem has not submitted s co of the alleged lease arc e
meat in support of his contentions. With its rebuttal statement to s
Board on April
7, 1975
the Carrier for the first time supplied copies of
the leases it referred to in the handling on the property. Obviously,
such material cannot now be considered (see Awards
19724
and
20588
among
others). Since the burden of proof to support en affirmative defense
Award Number 20945 page
Docket Number NW-20941
rested with Carrier and Carrier was obviously asked to furnish copies of
the leases, Carrier has failed to perfect its defense just as it did in
the previous dispute alluded to above. Since there appears to be a bona
fide lease arrangement, we are at a loss to understand Carrier's failure
to present the required documents; bowever, under the circumstances, we
have no choice but to affirm the Organization's position, as we did in
Award 20895.
FIADIWB: The Third Division of the Adjustment Hoard, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employee involved in this dispute are
respectively Carrier and Employee within the meaning of the Railway Labor
Act, as approved June
u,
1934;
That this Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement wan violated.
A W A R D
Claim snatainpd.
NATIONAL RAILROAD ADJUSTIMT BOARD
By Order of Third Division
ATTEST: G/~i
&*Zgol
Dated at Chicago, Illinois, this 30th day of January 1976.