Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28468
THIRD DIVISION Docket No. MW-27139
90-3-86-3-207
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern 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 perform snow removal work at Waukegan, Illinois on January 1, 1985
(System File SJ-2-85/WM-6-85).
(2) The Carrier also violated Rule 6(c) (Article IV of the May 17,
1968 National Agreement) 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 Truck
Driver K. L. Decamp shall be allowed eight (8) hours of pay at the truck
driver's time and one-half 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 Claimant holds seniority as a truck driver within the Scales and
Work Equipment Sub-Department. On the date this dispute arose, he was on furlough status because of
The Organization alleges, and Carrier does not dispute, that S 6 K
Enterprises, an outside contractor, was hired to perform snow-removal work at
the Waukegan Yard on January 1, 1985. The Organization maintains that a truck
equipped with a snow plow attachment was used for eight hours to remove snow
from the roadways and parking lots at the Yard on that date.
Form 1 Award No. 28468
Page 2 Docket No. MW-27139
90-3-86-3-207
It is the Organization's position that Carrier violated Paragraphs
(a) and (f) of Rule 4 -- Scales and Work Equipment Sub-Department, as well as
Rule 6 -- Contracting Out Work, when it engaged an outside concern to perform
the disputed work. Rule 4(a), which defines the work of employees of the
Scales and Work Equipment Sub-Department, including Truck Drivers, reads in
relevant part as follows:
...
the operation of Maintenance of Way Department
highway trucks and buses only which are used exclusively for the transportation of material and/or
the transportation of employes of the Maintenance of
Way Department shall be the work of the Scales and
Work Equipment Sub-Department."
Rule 4 provides:
"Truck Drivers' work shall include only the operation
of such trucks and buses as are included in Rule 4 (a)
above
....
Rule 6 (c) requires the Carrier to notify the General Chairman in
writing of its plan to contract out work "within the scope of the applicable
schedule agreement."
The Organization contends that the work is specifically reserved to
Scales and Work Equipment Sub-Department employees by virtue of the express
language of Rule 4. Alternatively, the Organization argues that truck drivers
within this sub-department have traditionally and historically performed the
work at issue here utilizing the Carrier's snow plow equipped truck. In
support thereof, the Organization offered the statements of the Claimant and
several other employees which state that the employees at the Waukegan Yard
have customarily performed snow removal work there in the past. The Organization maintains that Carr
work which is reserved to its Members by the Agreement. Moreover, the Carrier
failed to give timely advance notice of its intent to contract out the disputed work, and thus the O
said contracting.
Carrier's position is that Rule 4 does not reserve the work at issue
to Truck Drivers. Moreover, its refutes the Organization's claim as to practice, contending that out
Waukegan for at least fifteen years without protest by the Organization. Carrier records, including
handling of this dispute on the property, support its position, Carrier
stresses. Under these circumstances, Carrier asserts that Rule 6 is applicable, since only in the ev
the scope of the applicable schedule Agreement must it notify the General
Chairman of its intent.
Form 1 Award No. 28468
Page 3 Docket No. MW-27139
90-3-86-3-207
After careful review of the record in its entirety, we conclude that
the Carrier's position is correct. Rule 4, which defines the work of employees of the Scales and Wor
Drivers, does not make mention of snow removal. In the absence of an express
reservation of the disputed work by the specific language of the Agreement,
the employees were required to show that the work was reserved to them by
custom, practice and tradition. See Third Division Awards 11526, 14284,
15813, 17061, 19822, 20157, 20532, inter alia. In this case, the evidence
presented on the subject of past practice is conflicting at best. The Organization, as the moving pa
elements of its Claim. Here, we are unable to resolve or reconcile the
factual conflict.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. 4 er - Executive Secretary
Dated at Chicago, Illinois, this 7th day of August 1990.