NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25005
John E. CZoney, Referee
(Brotherhood of Maintenance of Flay Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside forces
to construct one and one-half (1-1/2) miles of barbed wire fence between Mile
Post 340 and Mile Post 342 in the vicinity of Mulha11, Oklahoma on September 10, 11
and 12, 1980 (System File 80-400.A8-8012/11-1940-20-138).
(2) Because of the aforesaid violation, Maintenance of Way Enployes
K. L. Ferguson, M. M. Manning, S. W. Hunsaker, D. W. Reaves, R. E. Nida, L. D. Kime,
J. Rodriquez, R. W. Bray and M. R. Harrell each be allowed pay at their respective
straight time rates for an equal proportionate share of the forty-eight (48)
man-hours expended by outside forces.
OPINION OF BOARD: The Carrier contracted for construction of a barbed wire fence
one and one-half miles long between M. P. 340 and 342 in its
Oklahoma District. The work was performed by two of the contractors personnel on
September 10, 11: and 12, 1980.
The Agreement between. the Organization and the Carrier provides in part
in Appendix No. 8, Article IV:
"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 prior thereto."
On August 12, 1980 the Carrier wrote the General Chairman of the
Organization stating:
"Referring to our telephone conversation of August 6, 1980,
concerning Carrier's desire to contract for the building of
a mile and one-half long barbed wire fence between M. P. 340
and 342, Oklahoma District (Old Oklahoma Seniority District)
near Mulha1l, Oklahoma.
In the aforementioned telephone conversation you advised me you
do not concur in the contracting of this work, and I notified you,
pursuant to the provisions of Appendix No. 8 of the current
Agreement, that the Carrier intends to contract for the aforementioned work.
Docket Number MW-25005 Page 2
The Organization claims the contracting out violated the Agreement
and that nine named Maintenance of Way Employees should be paid equal proportionate
shares at their rate for the hours worked by the outside forces.
In support of its contention that the work is within the scope of the
Agreement and customarily performed by employees it represents, the Organization
points to Rule 1, Appendix No. 25 of the Agreement which refers to Fence Gang
Foreman along with approximately 30 other classifications. It also refers to
Rule 2 (Seniority) which mentions Assistant Fence Gang Foreman as well as the
Wage Appendix which sets a wage rate for Fence Gang Foremen. Further the Organization
claims fence construction has been customarily and historically performed by
the Carrier's Fence Gang.
The Carrier denies the work is exclusively reserved to Claimants
under any practice, principle or rule. In the handling of this claim on the
property it pointed to six instances between March of 1979 and September of
1980 in which it used outside contractors on the Division involved to construct
right-of-way fences.
In Organization's view, the %%vrk at issue is clearly encompassed
within the scope of the references contained in Rule 1 and Rule 2 and therefore
no proof of practice is necessary.
In agreement with the Carrier this Board finds the references in Rule
1 and Rule 2 to be entirely general in nature. Numerous Third Division Awards
have held that when the rule relied upon is general it is Organization's burden
to establish that employes it represents have performed the work historically
and exclusively on a systemwide basis.
There is no evidence to establish historic exclusivity here. The
evidence of record on that point is to the contrary.
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 3card has jurisdiction o;er the
dispute involved herein; and
That the Agreement was not violated.
Docket Number MW-25005 Page 3
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Nancy ever - Executive Secretary
Dated at Chicago, Illinois, this 28th day of June, 1984
