Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29330
THIRD DIVISION Docket No. MW-29049
92-3-89-3-480
The Third Division consisted of the regular members and in
addition
Referee Gerald
E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Kansas City Southern 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 (A. K. Gillis) to perform track and grade crossing rehabilitation work
at Bostick Road Crossing (Mile Post 551) on June 1 and 2, 1987 [Carrier's File
013.31-320(234)].
(2) The Carrier also violated Addendum No. 9 (Article IV of the May
17, 1968 National Agreement) when it failed to furnish the General Chairman
with advance written notice of its intention to contract out said work.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above:
'We are hereby filing claim in behalf of Messrs.
J. Davenport, A. E. Walte, J. Jackson, J. R. Moore;
Shreveport, Section and 0. P. Turner, P. Stratton,
J. Baylor, Jr., R. Snell; Deramus Yard Extra Gang
and R. Hatcher, Pettibone Operator for twenty-four
hours at their respective straight time rate of pay
and for six (6) hours at their respective overtime
rate of pay on June 1, 1987 and for Messrs. J.
Davenport, J. Jackson and J. R. :bore and A. E.
Walters for twenty-four (24) hours at their respective straight time rate of pay on June 2, 1987
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.
Form 1 Award No. 29330
Page 2 Docket No. MW-29049
92-3-89-3-480
This claim asserts that Carrier violated the Scope Rule and other
provisions of the Agreement when it contracted out certain renewal work at the
Bostick Road crossing near its Shreveport, Louisiana, operations. Claimants
are Track Department employees who performed all of the hand work at crossing
renewal. The Claim is for the time spent by three employees of the contractor
who operated machinery leased by the Carrier to assist its forces. The Organization also charges the
as Addendum No. 9, which contains Article IV - Contracting Out of the May 17,
1968 National Agreement, and the good faith requirements of the December 11,
1981 National Letter of Agreement regarding the contracting of work. The
Organization charges Carrier did not notify of the intended contracting of
work nor did it attempt to secure rental equipment for operation by its
forces. In addition, the Organization alleges loss of future work opportunities as a result.
Carrier denies the work was contracted out. It asserts, rather, that
Claimants actually rid the work and were merely assisted by the rental of
equipment it does not own. Carrier says the use of such hired equipment has
traditionally and historically been the practice on the property. Accordingly, Carrier argues that n
it asserts that all Claimants were fully employed and suffered no lost work
opportunities. Carrier cites prior Third Division Award 26084, which involved
a very similar situation, in support of its position.
In reviewing the instant dispute, we have confined our consideration,
as we must, to those matters raised by the parties on the property. Our
examination of the record reveals that the Organization did not raise the
issue of notice there. That portion of the Claim may not, therefore, be
addressed by this Board.
It cannot --e disputed that outside forces performed some portion of
the crossing renewal work even if their activities were limited, as Carrier
asserts, to an assisting role. The parties dispute, however, whether any of
the work was within the scope of the Agreement and reserved to the Organization. In such a situation
either explicit Agreement language or by persuasive evidence of traditional
and historic performance, that the work is reserved to its members.
In Third Division Award 26084 the Board found the Organization failed
to satisfy its burden of proof. As we read that decision, the record there
consisted of assertions without any supporting evidence. Accordingly, that
claim was properly denied. The record here is different. On the property,
the Organization produced substantial evidence of past performance of the
disputed work as well as the availability of rental equipment that could have
been operated by Carrier forces. Carrier did not respond to this evidence.
Moreover, Carrier did not support with any evidence its assertion of a traditional and historical
Form 1 Award No. 29330
Page 3 Docket No. MW-29049
92-3-89-3-480
the statements provided by the Organization. These references, however,
suggest such activities were neither wide spread nor of long standing duration. On this record, ther
the scope of the Agreement. Without Carrier evidence showing a justification
for its actions, and there is none in this record, the Carrier's use of outside forces must be found
The Organization asserts that Claimants have lost a future work
opportunity. Carrier denies this and asserts that Claimants were fully
employed. The Organization does not dispute that the Claimants were fully
employed on the Claim dates. The record contains no evidence of lost earnings
by any of the Claimants.
In the absence of unusual circumstances, which are not present in
this record, the entitlement to a monetary claim is a separate issue requiring
independent proof of loss. Loss does not automatically flow from a finding of
Agreement violation. No actual loss has been substantiated herein. Therefore, the monetary portion o
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J.ZZTvpl~- Executive Secretary
Dated at Chicago, Illinois, this 24th day of July 1992.