NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number
MW-24424
William G. Caples, Referee
Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when outside forces were used to
perform clearing and ditching work between Sheldon and Houston, Texas (Liberty
Road to Greens Bayou) August
18
to October 1,
1980
(System File
MW-80-162/296-5
A).
(2)
Because of the aforesaid violation, System Machine Operator
Elmer Ermis be allowed two hundred fifty-six
(256)
hours of pay at his straight
time rate."
OPINION OF BOARD: Article
36
of the Agreement between the parties provides
in pertinent part:
"In the event this 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 prior thereto.
If the General Chairman, or his representative, requests a
meeting to discuss matters relating to the said contracting
transaction, the designated representative of the carrier
shall promptly meet with him for that purpose. Carrier and
organization representatives shall make a good faith attempt
to reach an understanding concerning said contracting, but
if no understanding is reached the carrier may nevertheless
proceed with said contracting, and the organization may file
and progress claims in connection therewith.
Nothing in this Article shall affect the existing rights of
either party in connection with contracting out. Its purpose
is to require the carrier to give advance notice and, if
requested, to meet with the General Chairman or his representative to discuss and if possible reach
connection therewith."
In July of
1980
Carrier wrote the General Chairman advising him of its
desire "to clear and grub the right-of-way and improve operating drainage from
Liberty Road to Greens Bayou
...
This property lies between our main line and
Hwy. U.S. 90." The letter also advised that there were no machine operators
Award Number
24383
Page 2
Docket Number MW-2-1
4
on furlough available to perform the work. The General Chairman by letter dated
6
days after the original letter advised, "we cannot agree to allow the carrier
to perform this work by the use of contractors" as the work has been historically
performed by the Maintenance of Way Department. For these and other reasons the
letter went on to advise the carrier the Brotherhood was "not agreeable to the
contracting of our work" and asked for a conference. while the matter was under
discussion the work was performed by an outside contractor from August 18 to
October 1,
1980.
It being the Carrier's position it had no knowledge of the contractor performing the work until
also asserted the work was not of any benefit to it.
The whole record seems clear that the work which was performed was
within the scope of the agreement; that the claimant was available and equipment
was available to perform it. The work was performed at a time and in a place
where the record shows Carrier contemplated having the work done on its right
of way. The Carrier cites cases, among them Fourth Division Award
3837
stating
a Carrier:
"cannot be held liable for actions taken by another where
agreement or at least acquiescence on its part cannot be
demonstrated."
It seems that reasonable men reading this record would conclude there was at
least acquiescence. The burden of proof of rule violation was sustained.
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 aver the
dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained.
Award Number
24383
Page
3
Docket Number rbI-241F24
NATIONAL RAILROAD ADJUSTMBNT BOARD
By Order of Third Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of May
1983.