NATIONAL RAILROAD ADTUSMM BOARD

Award Number 23034

RIIRD DIVISION Docket Number MW-23078

Rodney .EJ. Dennis, Ref°_ree

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPWE:

(Consolidated Rail Corporation (formerly The New York,

( New Haven & Hartford Railroad Company)

STATEMENT CF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when outside forces were used to cut brush and install track ties on the West Hanover Secondary Track between North Abington and West Hanover, Massachusetts (System Docket NH-7 Northeastern Region - New England Division).

(2) As a consequence of the aforesaid violation, Trachea T. Pawlak, C. Medeiros, M. M. Medeiros, Jr., A. Almeida E. Tamara.. J. Almeida and G. Farrell each be allowed sixty-six (661 hours of pay at their respective straight-time rate and twenty-two and one-quarter (22D hours of pay at their respective time and one-half rates."

OPINION OF BOARD: Between October 31, 197'( and November 7, 1977, an
outside contractor performed Maintenance of Way work on the West Hanover Secondary track running between North Abington and West Hanover, Massachusetts. This short piece of track (3.6 miles) was not part of the Conrail System, but was still under the control of the trustee of the Penn Central. The State of Massachusetts desired that train service be continued on this line and it obtained control of the right of way from the Penn Central trustee. The state thereupon entered into an agreement with Conrail to operate trains over the road and to perform certain maintenance work for which Conrail would be compensated by the Commonwealth of Massachusetts as the subsidizer.

(ksrrier also entered in to an agreement with the Commonwealth to obtain by subcontract certain accelerated maintenance of the 3.6 miles of track in question. Carrier notified the Organization that it intended to obtain a subcontractor to do the accelerated maintenance work. It then obtained a subcontractor and the work was completed. The Organization filed a grievance allegin employes should have been used to do the work.. not an outside subcontractor. The Organization relied on Rule 53, classification, to buttress its claim.

Award &anber 23034 page 2

Docket Humiber MW-23078

Carrier denied the claim,'arguing that:

(1) it did not own or control the track in question,

(2) the work performed was not instigated by it, was not done for its benefit, and was not paid for by wrier, and

(3) the agreement between Conrail and the Commonwealth of Massachusetts specifically states that accelerated. maintenance will be done by subcontract. Carrier was not in control of the situation when this agreement was made and was directed by the Commonwealth to subcontract the work.

It is clear from the record that claimants were furloughed employes who normally would have performed maintenance work on the section of track involved. It is also clear that the work done by the contractor was work belonging to Maintenance of Way employes.

This Board has carefully, reviewed the record of this case and can find no basis on which to justify Carrier's position. We have care-
fully studied the Third Division awards cited by Carrier in its submission, ~-
Awards 20639 and 20644, and we do not find them on point. This Bawd,
however, has been guided by a recent award involving Carrier and the Org
anization and an identical issue, though on another part of the railroad
(Public Law Board No. 2203, Award 21, Harold M. Weston, Chairman).

The facts of Award 21 closely parallel those in the instant case and this Board agrees fully with that awards

(1) Claimants cited are proper claimants.

(2) The action was consistent with the terms of the agreement between carrier and the Commonwealth of Massachusetts.

(3) The action, however, violated Rule 53 of the agreement.

(4) This Board is not in accord with carrier's view

that it bears no responsibility in this matter.

'- . Award Number 23034 page 3
l Docket Nwnber D4W-23073

We believe that Carrier knew that it had commitments under collective bargaining agreements when it entered into operating contracts with the Commonwealth. These collective bargaining commitments were not eliminated by these operating agreements.

Based on the record of the case and the rationale expressed in Award No. 21 (with which we fully agree), this Board must issue a sustaining award. As to the damages to be paid to claimants, after considerable discussion we have concluded that a total of $8.25 hours at the pro rata rate shall be divided equally among the named claimants.

In arriving at this award, this Board is confined to the undisputed facts of this record. We may not, no matter how reasonable it may appear to be, speculate on the existence of facts not cited in the record. The only fact agreed upon or cited in this record concerning the subcontract was the num (88.25). No mention was made of the total labor cost, number of men working, hourly rates paid, etc.

This Board, therefore, has been confined to basing this award on the total hours cited in the record.

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 violated.

AWARD

Claim sustained in accordance with Opinion.

NATIONAL RAILROAD AATLU"V.MT BOARD

By Order of Third Division

ATTEST: Executive Secretary

Dated at Chicago, Illinois, this 28th day of October 1980.