Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28310
THIRD DIVISION Docket No. MW-27770
90-3-87-3-249
The Third Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
(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 the Carrier assigned or otherwise permitted outside forces t
24 and 25, 1986 and April 22 through April 25, 1986 (System Files MW-86-64/45221-A and MW-86-69/453-
(2) The Carrier also violated Article 36 when it did not give the
General Chairman advance written notice of its intention to contract said work.
(3) As a consequence of the aforesaid violations, furloughed Machine
Operator J. H. Hudson shall be allowed sixteen (16) hours of pay at the machine operator's straight
allowed sixty-four (64) hours of pay at his straight time rate."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Organization alleges that Carrier violated the Agreement by permitting the contracting of th
Luling, Texas, in derogation of the rights of the Claimants. The record indicates that the work was
the dates in question. The Carrier indicated that the particular grass cutting activity was not for
in its beautification program. The Carrier indicated that its mowing program
anticipated the cutting of grass and weeds in that area at most two or three
times a year.
Form 1 Award
No.
28310
Page 2 Docket No
.
MW-27770
90-3-87-3-249
The record in this dispute indicates that the Carrier did not authorize the work in question, di
when the work was performed. The mowing was done by municipal employees under
the control of and by direction of the municipalities involved.
This Board has dealt with the identical issue, between the same
parties in Third Division Award 26541. In that Award, we said:
"Carrier contends it did not authorize the City
of Jennings to perform mowing on its property.
It did not know the work was being done and it
did not compensate the city for the mowing it
performed.
This Board has reviewed the record on this
portion of the Claim and can find no evidence to
demonstrate that Carrier was in fact aware of
what city employees were doing on its property.
Given this lack of knowledge or agreement on the
part of Carrier we have no recourse but to
conclude that Carrier did not improperly subcontract the work in question and deny that
portion of the Claim."
In addition to the reasoning expressed in the Award cited, supra, there have
been a host of Awards dealing with the contracting of similar work. See for
example, Third Division Awards 23422, 24078, 26103, among many others. Based
on the entire record, it is our conclusion that Carrier did not engage in contracting out any work a
sequently,
the Claim must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
a cy J. D -Executive Secretary
Dated at Chicago, Illinois, this 29th day of March 1990.
LABOR MEMBER'S DISSENT
TO
AWARD 28310 - MW-27770
(Referee Lieberman)
The Majority's decision in this Award allows this Carrier, by its own
inaction, to circumvent the Parties Agreement.
The Majority held that, "The record in this dispute indicates that the
Carrier did not authorize the work in question, did not pay for it, and in
fact was not aware of when the work was performed. The mowing was done by
municipal employees under the control of and by direction of the municipalities involved." However,
against the claim by contending that, "We receive a notice by certified mail
that the weeds on our right-of-way exceed the height of weeds allowed by the
City ordinance
...."
and that, "In the event we fail to mow the weeds, the
City will perform this service without further notice." Then the Carrier
attaches a copy of the pertinent City statutes which clearly under Sec.
14-20 specifies that the owners of the property will be charged for the work
performed by the City, i.e., "***the city may do such work or make such
improvements as are necessary to be done, and pay therefor and charge the
expenses incurred thereby to the owner of such lot. Such expenses shall be
assessed against the lot or real estate upon which the work was done or the
improvements made." The Carrier is notified by certified mail that the work
will be done, subsequently charged, and yet pleads ignorance of the events
of this claim. Carriers pleadings of ignorance apparently caused the Majority to look beyond the Agr
of Carriers inability to respond to certified mailings concerning violation
of City ordinances, felt that any further constraints, albeit Agreement lan-
*~
guage to the contrary, should not be imposed. Such a decision obviously
renders this Award palpably erroneous.
I, therefore, dissent.
D. D% Bartholomay