NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-26504
Edward L. Suntrup, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
(Southern Region)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when without a conference
having been held as required by the October 24, 1957 Letter of Agreement, it
assigned outside forces to perform vegetation eradication work at the Barboursville Plant on April 1
(2) Because of the aforesaid violation, furloughed Laborers C.
Patrick and J. Dillon shall each be allowed four (4) hours of pay at their
respective straight time rates."
OPINION OF BOARD: A Claim was filed by the General Chairman of the Organi
zation on April 25, 1984, on behalf of the two Claimants on
the grounds that the Carrier had violated the Agreement when it permitted a
contractor to do certain work in lieu of the Claimants. The Carrier had
allegedly used SSI, Inc. of Huntington, West Virginia to apply weed killer
at its Barboursville Reclamation Plant on April 18, 1984, rather than the
Claimants.
In its denial of the Claim at the final level of appeal the
Carrier's Senior Manager of Labor Relations stated the following:
"Our review of this matter discloses that
while Maintenance of Way employees on a few
occasions have spread some weed control chemicals over small areas, they have not made
general applications of this type chemical.
Carrier has historically contracted for chemical
control of weeds at the Barboursville Reclamation Plant. We note that the application of
this type chemical is regulated by the EPA, that
the contractor is licensed and no rule of the
Agreement specifies that work of this nature
would accrue to M/W laborers. Thus, we affirm
that the Carrier properly contracted for the
control of weeds at Barboursville, Noting that
the Carrier has continually contracted for this
work and in view of the fact that M/W laborers
lack the necessary expertise to do such work, it
was not necessary for Carrier to give you notice
of contract."
Award Number 26711 Page 2
Docket Number MW-26504
As moving party in the instant dispute the burden of proof lies with the
Claimants (Third Division Awards 24508, 26082, 26084). A search of the record
fails to produce sufficient substantial evidence to warrant the conclusion
that the Carrier was in violation of contract when it permitted an outside
contractor to do weed control work at its Barboursville Shop. Further, there
is no evidence of probative value to contradict the position of the Carrier
that it had used outside contractors for this type of work as a matter of past
practice. Past Awards emanating from this Board have held that the jurisdictional right to a type of
on proof that the work was customarily and traditionally performed by the
craft (Third Division Awards 23423, 25276). Both sides do admit that those
covered by the Agreement have occasionally engaged in various kinds of minor
weed control work for the Carrier. Such occasional work is insufficient,
however, to establish exclusive right to such work.
A Claim similar to this one on this property between the same
parties was disposed of in 1986 by Third Division Award 26032. The Board has
re-studied that Award and it must conclude that the Board's conclusion therein
must reasonably serve as precedent for the instant case. On that basis, and
on the basis of the evidence of record, the Claim cannot be sustained. Various other issues raised b
property such as the correct date when the alleged violation took place, and
the amount of time consumed by the contractor's employees when the weed control work was done need n
on the threshold issue.
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 not violated.
A W A R D
Claim denied.
Award Number 26711 Page 3
Docket Number MW-26504
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J e r -.Executive Secretary
Dated at Chicago, Illinois, this 23rd day of November 1987.