NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION Award No. 30004
Docket No. MW-29504
94-3-90-3-436
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The Agreement was violated when the
carrier assigned or otherwise permitted
outside forces (Buck Rhoads and Sons) to
construct and repair right of way fence
between Mile Posts 679.50 and Mile Post
680.95, near Rawlins, Wyoming beginning
April 17, 1989 and continuing (System
File S-193/890663).
(2) The Agreement was further violated when
the Carrier failed to timely furnish the
General Chairman with advance written
notice of its intention to contract out
said work.
(3) As a consequence of the violations in
Parts (1) and/or (2) above, Maintenance
of Way employes N. H. Trujillo, J.
Medina, A. Guardiola and D. D. Fernandez
shall each be allowed pay at the B&B
laborer's rate for an equal proportionate
share of the total number of man-hours
expended by the outside forces 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 employe 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.
Form 1 Award No. 30004
Page 2 Docket No. MW-29504
94-3-90-3-436
Parties to said dispute waived right of appearance at hearing
thereon.
Under date of April 3, 1989, the Carrier notified the General
Chairman as follows:
"As information, individuals (ranchers) will
be repairing and constructing fence along the
Carrier's right-of-way at various locations in
the State of Wyoming. This property is leased
to various individuals and outside the control
of the Carrier. The work in question will be
between M.P. 623 to M.P. 623.5: M.P. 679.25 to
M. P. 680. 75 ; M. P. 690 to 740; and 709.50 to
710.50.
Serving of this 'Notice' is not [to] be construed as an indication that the work described above
your Agreement, nor as an indication that such
work is necessarily reserved, as a matter of
practice, to those employes represented by the
BMWE."
This letter was typical of others sent at about the same time,
concerning other locations where fencing work was to be performed.
The work proceeded as indicated, leading to the initiation of this
Claim. Among the Carrier's defenses was that the work was performed on land leased to ranchers and t
under the Carrier's control. In its Submission, the organization
contends that the Carrier failed to provide copies of the leases
allegedly supporting the Carrier's position. The Organization's
Submission states:
"We submit that the carrier's failure to
present into the record a copy of the lease
agreement, as requested by the General Chairman, goes to the very heart of the Carrier's
defense and requires that this claim be
sustained based upon the Carrier failure to
prove its affirmative defense."
If the sole basis for resolution were the question of the
content and nature of the lease, the Board would necessarily be
required to examine this aspect in depth. More basic, however, is
the question whether there are contractual restrictions on the type
of work involved here, even if -- for the sake of argument -- such
work was effectively under the Carrier's control.
Form 1 Award No. 30004
Page 3 Docket No. MW-29504
94-3-90-3-436
Recent Third Division Award 28558 (where notice was given) and
Third Division Award 28789 (where no notice was given), involving
the same parties, are denial Awards involving the same contracting
issue. As stated in Award 28558:
"In this case, Carrier has also established a long
history of contracting out the construction of
right-of-way fences. This work, therefore, is
subject to the exception provided in Rule 52(b)
(regarding prior and existing rights and practices]
without regard to whether or not it is reserved
exclusively to the covered employees. The Agreement was not violated."
The Board finds no basis here to conclude otherwise. The
Board also notes the organization's contention that the letter
provided by the Carrier did not provide the required 15-day notice.
In view of the more fundamental consideration of prior practice,
the Board here, as in Award 28789, does not find this of determinative significance.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
0_
a-
Catherine Loughrin Interim secretary to the Board
Dated at Chicago, Illinois, this 21st day of January 1994.