Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29304
THIRD DIVISION Docket No. MW-29308
92-3-90-3-216
The Third Division consisted of the regular members and in
addition Referee Charlotte Gold when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri
( Pacific Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Neosho Construction Company) to build a cement box culvert at Bridge
No. 499.4 in the vicinity of Van Buren, Arkansas on January 16, 17, 18, 19,
20, 21, and 22, 1989 (Carrier's File 890187 MPR).
(2) The Agreement was further violated when the Carrier failed and/or
refused to furnish the General Chairman with advance written notice of its
intention to contract out said work as required by Article IV of the May 17,
1968 National Agreement.
(3) As a consequence of the violations referred to in Parts (1) and
(2) above, B&B Foreman J. A. LaFon, Motor Car Operator G. J. Durst, Foreman C.
W. Creekmore, Assistant Foreman M. R. Cordray, Assistant Foreman A. L.
Howell, Mechanic J. W. Penrod, Helper B. Roper, Helper M. E. Smith, Assistant
Foreman R. R. Forehand and Mechanic J. C. Boyer shall each be allowed pay at
their respective straight time rates for an equal proportionate share of the
three hundred seventy-five (375) man-hours expended by the outside contractors
performing the worK in Part (1) above.
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.
By notice to Carrier dated March 7, 1989, the Organization filed a
Claim on behalf of ten Central Division B 6 B employees for seven days' pay
during the period from January 16 to 22, 1989, when Carrier hired outside
Form 1 Award No. 29304
Page 2 Docket No. MW-29308
92-3-90-3-216
forces to build a cement box culvert at Bridge No. 499.4 in the vicinity of
Van Buren, Arkansas. Because of a procedural irregularity in the handling of
the dispute on the property, the Claim must be sustained.
finder Rule l2, Section 2(a) of the Agreement, the Carrier, in electing to disallow a Claim or griev
claim or grievance (the employe or his representative) in writing of the reasons for such disailowan
grievance shall be allowed as presented
...."
In responding to the Organization's Claim on March 17, 1989, the
Carrier gave as its reason for rejecting it the fact that:
"Investigation into the merit of this claim reveals
that -he Agreement is absent of language which reserves the picking up and banding of ties exclusive
A later denial of the Organization's appeal by the Carrier stated
that:
"The Carrier continues to maintain that the
performance of the work has been accomplished by
contractors forces in the past. Previously you
have been furnished partial lists of contracts
detailing contracts which have been issued over the
years relative to equipment support and picking up
and clean up debris, etc. These lists, and in the
case of the copies of contracts furnished support
and substantiate the Carriers position of having a
longstanding practice over a number of years. They
are also available for your personal review in this
office at any time you so desire."
Given Carrier's failure to comply with Section 2(a) of Rule 12 and
provide proper notification of its reason for disallowing the Claim at the
initial step of the procedure, the Claim must be allowed as presented.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:~Xr,/
Nancy J. -Ire--Executive Secretary
Dated at Chicago, Illinois, this 24th day of July 1992.