Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28574
THIRD DIVISION Docket No. MW-27136
90-3-86-3-197
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:
(Soo Line Railroad 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 hauling and fi
by the X-11 Crossing Gang from April 30, 1984 through November 8, 1984 (System
File 47 NMA 121181/800-46-B-194).
(2) The Carrier also violated Rule 47 when it did not give the General Chairman advance written
work.
(3) As a consequence of the aforesaid violations, the senior active
sectionman shall be reimbursed for the difference between the sectionman's
rate and Track Department Truck Driver's rate and he shall be made whole for
all overtime and the senior furloughed sectionman on Sub-district 1-A shall be
made whole at the sectionman's rate for all pro rata and overtime pay lost
from April 30 through November 8, 1984."
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.
On December 26, 1984, the Organization presented the instant claim on
behalf of senior furloughed sectionman on Sub-district 1-A and senior active
sectionman on the X-11 Crossing Gang. The basis for the claim was Carrier's
alleged hiring of an outside contractor, Schneider Trucking, to perform hauling and filling work in
1984 through November 8, 1984.
Form 1 Award No. 28574
Page 2 Docket No. MW-27136
90-3-86-3-197
The Organization contends that the disputed work has customarily and
traditionally been performed by Carrier forces in accordance with Rule 1, the
Scope Rule, and Rule 45(k), which reads:
"(k) Truck drivers in the track and B&B Department will
perform track work and B&B work when they are not driving
trucks. It is understood that when a truck is assigned to a
B&B crew or a track crew, the position of truck driver will
be assigned to the senior, qualified, available employee in the
crew who wants the position."
The foregoing language, according to the Organization, demonstrates
that the work at issue is encompassed within the scope of the Agreement and
should properly be performed by its members. The Organization further maintains that it should have
contract out the work.
Carrier argues that for many years it has augmented its special
crews, such as the X-11 Crossing Gang, with specialized equipment not available on the system. The s
dump truck, which Carrier asserts supplemented the truck working with the
Crossing Gang. Given the longstanding nature of this practice, and the Organization's apparen
claim must fail.
A careful review of the record in its entirety convinces us that the
Organization has not proven that it was entitled to perform the work in question. We note that Rule
expressly refer to the work performed here. Rule 45(k), also relied upon by
the Organization, is by the same token very unlike the specific, detailed work
classification rules which spell out the duties to be performed by a particular craft or classificat
guarantee of work or that it specifically reserves to the Claimants the right
to perform the work at issue here.
That being the case, this Board has required a demonstration of work
performance by custom, practice or tradition in order to sustain a contracting-out violation. Here,
its employees performed this work in the past, while the Carrier vigorously
asserted that there has been a longstanding practice of using outside contractors to perform the wor
conclude that the Organization has not met its burden of proving the essential
elements of its claim.
A W A R D
Claim denied.
Form 1 Award No. 28574
Page 3 Docket No. MW-27136
90-3-86-3-197
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. v - Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1990.