Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28489
THIRD DIVISION Docket No. MW-27581
90-3-87-3-11
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, beginning January 2,
1986, it assigned outside forces to pick up cross ties in the vicinity of
Muad, Texas on the Tyler Sub-Division (System File MW-86-2-CB/53-880).
(2) The Carrier also violated Article 33 when it did not give the
General Chairman advance written notice of its intention to contract out said
work.
(3) Machine Operators B. R. Culclager and L. B. Murry shall each be
allowed one thousand four hundred twenty-two (1422) hours of pay at their
respective straight time rates because of the aforesaid violations."
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.
Prior to 1983, the Carrier sold scrap ties "as is and where is" to
numerous purchasers. In some cases, however, these ties were inaccessible to
the purchaser, and it was necessary for the Carrier to pick them up and move
them to another location. To accomplish this, in 1983, the Carrier leased a
tie crane and buggy and used its own employees for the operation of this equipment. At the same time
Pilgreen Company, which agreed to purchase all scrap ties.
In 1984, Spencer Pilgreen purchased its own tie crane and buggy and
entered into an agreement with the Carrier whereby Spencer Pilgreen would
furnish the equipment, but the Carrier would provide an operator. In November
1985, Spencer Pilgreen purchased a second crane and hired employees to operate
the equipment. When Spencer Pilgreen began to pick up and remove scrap ties
Form 1 Award No. 28489
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with its own equipment and employees in 1986, the instant Claim was filed.
The Organization contends the Carrier violated the Agreement by improperly
subcontracting out work belonging within its scope.
The basic issue in this case is whether or not the picking up and removing of scrap ties which h
scope of the Agreement and subject to the rules regarding subcontracting.
Article 1 of the Agreement, which is the Scope Rule, merely lists the titles
of positions covered by the Agreement. There are no specific descriptions of
the duties of the crafts or positions listed. Machine Operators in the Roadway Machine Department ar
Tie Crane Operator is referred to in Article 2, Seniority Rules. From this,
we can conclude the duties performed would generally fall within the scope of
the Agreement. In this case, however, the work was done for the benefit of
Spencer Pilgreen and involved the removal of material which belonged to
Spencer Pilgreen. The ties had already been removed from the track structure
by covered employees and left on the right-of-way. At this point, they were
no longer the property of the Carrier.
In Third Division Award 10826, the Board denied the Claim that the
dismantling of a shed had been improperly assigned to a contractor.
Finding that the Carrier in that case had sold the shed to a salvage
dealer, the Board denied the Claim, holding:
"The Carrier has the legal right to sell its property;
and, after such sale, ownership of such property is
then vested in the purchaser thereof. The work of the
new owner in removing the purchased property is not -
in our opinion - work that could belong to the Organization under any rule or theory brought to our
That Award provided the basis for our decision in Third Division
Award 24280, which involved the removal of scrap ties by a purchaser under a
contract which provided that the purchaser would collect the ties. The Board
held that such a sale and removal by the outside purchaser was not improper
and required no notice under Article IV, Contracting Out, of the May 17, 1968
National Agreement. Accordingly, we hold here, as we did in Award 24280, that
the work was not contracted out.
The Organization maintains this work inures to the covered employees
because the Carrier had first assigned it to them when the work was done with
equipment leased by the Carrier. When Spencer Pilgreen provided its own equipment, the job was initi
argues the Organization, estops the Carrier from allowing the work to be performed by persons not un
Pilgreen acquired equipment to do the work, it could control who operated it.
The fact Spencer Pilgreen, in effect subcontracted the work to the Carrier did
not obligate it to continue to do so. As the work was no longer under the Carrier's control, the Cla
Form 1 Award No. 28489
Page 3 Docket No. MW-27581
90-3-87-3-11
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
000,
Attest:
4~
cy 4wgr - Executive Secretary
Dated at Chicago, Illinois, this 7th day of August 1990.