Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award
No.
30468
Docket
No.
MW-30124
94-3-91-3-551
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:
(CSX Transportation, Inc. (former
(Chesapeake and Ohio Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The Agreement was violated when the Carrier
assigned outside forces to unload concrete
trackties out of Carrier gondola cars at Mile
Post 277.3 on the Clifton Forge District of
the Huntington Division on May 7 and 8, 1990,
[System File C-TC-7004/12 (90-601) COS).
(2) The Agreement was further violated when the
Carrier failed to discuss the matter with the
General Chairman in good faith prior to
contracting out said work as required by the
October 24, 1957, Letter of Agreement
(Appendix `B').
(3) As a consequence of the violations referred to
in Parts (1) and/or (2) above, Foreman L.
Entsminger, Equipment Operator E. Downey and
Trackmen G. Simpson, T. Plecker and D. Spinner
shall each be allowed eight (8) hours and
forty-five (45) minutes of pay at their
respective time and one-half rates of pay."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employee 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. 30468
Page 2 Docket No. MW-30124
94-3-91-3-551
Parties to said dispute waived right of appearance at hearing
thereon.
On the dates of the claim, the carrier was in the process of
replacing wood ties on the Clifton Forge District of the Huntington
Division. Because it did not have the specialized equipment
necessary for the installation of the concrete ties, the Carrier
had engaged a contractor to perform this work.
Based upon the Carrier's explanation, we find the contractor
was installing the concrete ties from specialized gondola cars,
which were then filled with the removed wooden ties. Between 11:00
P.M. on May 7, 1990, and 7:45 A. M. on May 8, 1990, the
contractor's employees emptied the wooden ties from the cars and
loaded new concrete ties for the next day's work. It is this work
of unloading and loading the ties that the Organization asserts was
performed by persons not covered by the Agreement and is the basis
for this claim.
The organization first argues the work is reserved to
employees covered by the Agreement. According to the Organization,
the contractor's employees used a grapple truck material handler.
The Organization says this is the type of equipment regularly
operated by roadway equipment operators and would be classified as
a class A machine. The organization cities Rule 66 -
Classification of the Agreement which reads, in part, as follows:
"(a) Proper classification of employees and a
reasonable definition of the work to be done
by each class for which just and reasonable
wages are to be paid is necessary but shall
not unduly impose uneconomical conditions upon
the Railway. Classification of employees and
classification of work, as has been
established in the past, is recognized.
(f) Employees in the roadway machine operator
group will be used to operate all of the socalled heavier machines used in the
performance of track and bridges and
structures work except Mole Ballast
Cleaners ....
11
Asserting the work of loading and unloading ties has
historically been performed by covered employees on this property,
the Organization further cites Rule 83 - Contract Work, which
reads, in part, as follows:
Form 1 Award
No.
30468
Page 3 Docket
No.
MW-30124
94-3-91-3-551
"(b) It is understood and agreed that maintenance
work coming under the provision of this
agreement and which has heretofore customarily
been performed by employees of the railway
company, will not be let to contract if the
railway company has available the necessary
employees to do the work at the time the
project is started, or can secure the
necessary employees for doing the work by
recalling cut-off employees holding seniority
under this agreement."
Secondly, the Organization argues the Carrier violated
Appendix "B" of the Agreement by not holding a conference to
discuss contracting out the work prior to doing so. Appendix "B"
is an October 24, 1957 letter Agreement from Assistant Vice
President - Labor Relations B. B. Bryant to General Chairman F. M.
Crance, which reads as follows:
"Yours of April 30, 1957, subsequent correspondence and
conference held at Huntington, W. VA., September 27,
1957, concerning your requests to revise and amend Rules
12 and 83 of the C&O Agreement (Southern Region and
Hocking Division) and Rule 59 of the Northern Region
Agreement, including employees of the Fort Street Union
Depot Company of Detroit and the Manistee and
Northeastern Railway Company.
As explained to you during our conference at Huntington,
W. VA., and as you are well aware, it has been the policy
of this company to perform all maintenance of way work
covered by the Maintenance of Way Agreements with
maintenance of way forces except where special equipment
was needed, special skills were required, patented
processes were used, or when we did not have sufficient
qualified forces to perform the work. In each instance
where it has been necessary to deviate from this practice
in contracting such work, the Railway Company has
discussed the matter with you as General Chairman before
letting any such work to contract.
We expect to continue this practice in the future and if
you agree that this disposes of your request, please so
indicate your acceptance in the space provided."
Form 1 Award No. 30468
Page 4 Docket No. MW-30124
94-3-91-3-551
The above quoted Appendix "B" clearly enunciates the Carrier's
commitment to discuss
contracting out
with the General Chairman.
The Carrier's November 12, 1990 letter states that the "entire
project was discussed" with the General Chairman. This contention
was not challenged by the Organization. Moreover, the carrier
consistently stated the reason for contracting out was the lack of
specialized equipment. The record does not reveal the details of
the Carrier's discussion with the General Chairman, but we stress
there is no evidence the organization sought to have a specific
portion of the work involved- assigned to covered employees.
The organization has not shown that the carrier has the
specialized equipment necessary for the proper installation of
concrete ties or that the matter was not discussed with the General
chairman in accordance with Appendix
118.11
Thus, it is evident the
Organization has not met its burden of proof.
AWARD
Claim denied.
O R D E R
This Board, after consideration of the dispute identified
above, hereby orders that an award favorable to the Claimant(s) not
be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 13th day of September 1994.