NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-24802
Rodney E. Dennis, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Colorado and Southern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, without prior notification
to the General Chairman, it assigned the work of picking up scrap material
beginning May 8, 1981 to outside forces (System File C-17-81/MW-443).
(2) Machine Operator J. L. Santistevan and the senior furloughed
trackman each be allowed pay at their respective rates for an equal proportionate
share of the total number of man-hours expended by outside forces in performing
the work referred to in Part (1) hereof.
OPINION OF BOARD: Between May 11 and June 4, 1981, Carrier employed an outside
Contractor with a Bantam Crane to pick up scrap material on
.its property at Des Moines; New. Mexico. The crane could not be rented without
an Operator. Carrier's Burro Crane was out of service and in the shop for
major repairs. -On July 6, 1981, a claim was filed by Trackman Santistevan and
the most senior furloughed Trackman for a proportionate share of the man hours
expended. Carrier states that 134 of the worked hours were performed by the
Contractor and compensated by Carrier.
Petitioner contends that Carrier violated Rule 3(b) of the Controlling
Agreement, which, in pertinent part, reads as follows:
"Contracting (b): Employees included within the scope of
this agreement in the Maintenance of Way and Structures
Department perform work in connection with the construction,
maintenance or repairs of, and in
connection with
the
dismantling of tracks, structures or facilities located
on the right of way and used in the operation of the
Company in the performance of common carrier service.
Work as described in the preceding paragraph may not be
contracted to outside parties, except by agreement with
the Brotherhood, unless special skills not possessed by
company employees, special equipment not owned by the
company, or special material available only when applied
or installed through supplier, are required; or unless
work is such that the Company is not adequately equipped
to handle the work; or, time requirements must be met
which are beyond the capabilities of company forces to
meet.
Award Number 25276 Page 2
Locket Number MW-24802
"In the event the company plans to contract out work
because of one of the criteria described herein, it shall
notify the General Chairman of the organization in writing
as far in advance of the date of the contracting transaction as is practicable and in any event not
fifteen (15l days prior thereon, except in 'emergency
time requirements' cases. If the General Chairman, or his
representative, requests a meeting to discuss matters
relating to the said contracting transaction, the designated
representative of the Company shall promptly meet with
him for that purpose. The Company and the Brotherhood
representative shall make a good faith attempt to reach
an understanding concerning said contracting, but if no
understanding is reached, the Company may nevertheless
proceed with said contracting and the Brotherhood may file
and progress claims in connection therewith."
Petitioner maintains that Carrier contracted out work customarily and
traditionally performed by Maintenance of Way employes and failed to properly
notify the General Chairman of the need to subcontract. By these actions, it
denied the General Chairman an opportunity to discuss the work to be done and
did not allow him an opportunity to attempt to persuade Carrier to perform the
work with Carrier forces.
Carrier contends that the work of picking up scrap on Carrier property,
is not, by Scope Rule, custom, or practice, reserved exclusively to Maintenance
of Way employes. Therefore, there was no requirement to notify the General
Chairman of the pending subcontract.
This Board has carefully reviewed the record of this case and the
lead Awards submitted by each side. We are compelled by this record and the
cases presented to conclude that Petitioner has not, by the smallest amount of
probative evidence, demonstrated that picking up scrap on Carrier property is
work reserved to it by Agreement, custom, or practice. Given the failure of
Petitioner to demonstrate that the work contracted out was its work, we will
dismiss the claim for lack of proof.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the paties 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 juisdiction over the
dispute involved herein; and
That the Agreement was not violated.
Award Number 25276 Page 3
Locket Number MW-24802
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT HOARD
By Order of Third Division
Attest:
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 28th day of February 1985.