Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 30516
Docket No. MW-30162
94-3-91-3-601
The Third Division consisted of the regular members and in
addition Referee Hugh G. Duffy when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( (Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The Agreement was violated when the Carrier
assigned an outside concern (Culver Moving
Company) to perform equipment moving work
transporting Carrier property from San Antonio
Passenger Depot to East Yard, San Antonio
beginning July 23 through 27, 1990, August 6,
7, 8 and September 7, 1990 (System File MW-90-
(2) The Agreement was further violated when the
Carrier entered into a contracting transaction
without giving the General Chairman at least
fifteen (15) days' advance written notice of
its plan to contract out as set forth in
Article 36.
(3) As a consequence of the violations referred to
in either Part (1) and/or Part (2) above, B&B
Foreman A. Diaz, Assistant B&B Foreman R.R.
Colmenero and B&B Carpenters M.W. Woytasczyk,
L.N. Ward and J.D. Ebner shall each be allowed
pay for seventy-two (72) hours at their
respective straight time rates of pay.,,
FINDINGS:
The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
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94-3-91-3-601
The carrier or carriers and the Lamployee 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.
Parties to said dispute waived right of appearance at hearing
thereon.
On June 7, 1990, the Carrier sold its San Antonio Depot to the
City of San Antonio. Certain physical assets of the Carrier,
described as "Excluded Personalty" in the Bill of Sale for the
property, were to remain under the ownership of the Carrier.
Subsequently thereto, the Carrier used its own forces to move and
relocate specialized equipment excluded from the terms of the sale,
such as signal items at the freight and passenger depot, along with
all communication equipment.
During the week of July 23 through 27, on August 6, 7 and 8,
and on September 7, 1990, employees of an outside contractor,
Culver Moving Company, pursuant to a contract with the City of San
Antonio, were utilized to move certain items of office equipment,
also excluded from the terms of the sale, from the San Antonio
Depot to East Yard, San Antonio.
On September 21, 1990, the Organization filed a time claim on
behalf of five members of the Organization, alleging that the
Carrier violated the Agreement by assigning or otherwise allowing
outside forces to move the items of office equipment, work which
the Organization alleges has been historically performed
exclusively by members of the Organization. The organization
alleges that the Carrier violated the following Articles of the
Agreement: Article 2, Seniority Rules; Article 6, Seniority
Rosters; Article 8, Promotions and Filling of vacancies; Article
16, General Rules; and Article 36, Contracting Out. In support of
its position, the Organization furnished letters from seven B&B
employees in which they stated that they have always performed this
kind of work.
The Carrier initially contended that B&B employees are not
entitled to this work, since they have not demonstrated that they
have historically and customarily performed this work exclusively
on a system-wide basis, and that in any event all of the grievants
were fully employed when the disputed work was performed. In its
declination letter of March 26, 1991, the Carrier raised the
following additional defenses:
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94-3-91-3-601
"During conference you were advised that the passenger
and freight depot were no longer Southern Pacific
property after June 7, 1990,._ and in the condition of sale
of the passenger and freight depot in San Antonio, the
City of San Antonio would pay for the relocation of said
premises. The City required that bids be received and
accepted by them to assure the most equitable means be
found for the move because the taxpayer was to burden the
cost. Inasmuch as the City was paying the bills, the
Carrier was only acting as an agent to supervise the
move.
The City approved the use of Southern Pacific labor to
move material and equipment that requiredspecial
handling such as all signal items at the freight and
passenger depot along with all communication equipment.
The Organization acknowledged the fact that these
Claimants did move some of the office contents from the
depot. However, the City would not buy the idea that
office furnishings would require special skills that only
SP personnel could provide. Without prejudice to our.
position as stated in previous correspondence, this
. facility was no longer owned by Southern Pacific,
.therefore, the disputed work was not work normally
accruing to members of the BMWE. Further, Carrier did
not contract out the work at issue, and no notice was
required under Article 36 as you have alleged."
Article 36 of the Agreement reads in pertinent part as
follows:
"ARTICLE 36
CONTRACTING OUT
In the event this carrier plans to contract out work
within the scope of the applicable schedule agreement,
the carrier shall notify the General Chairman of the
Organization involved in writing as far in advance of the
date of the contracting transaction as is practicable and
in any event not less than 15 days prior thereto.
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If the General Chairman, or his'representative, requests
a meeting to discuss matters relating to the said
contracting transaction, the,designated representative of
the carrier shall promptly meet with him for that
purpose. Carrier and organization representatives shall
make a good faith attempt to reach an understanding
concerning said contracting, but if no understanding is
reached the carrier may nevertheless proceed with said
contracting, and the organization may file and progress
claims in connection therewith.
Nothing in this Article shall affect the existing rights
of either party in connection with contracting out. Its
purpose is to require the carrier to give advance notice
and, if requested, to meet with the General Chairman or
his representative to discuss and if possible reach an
understanding in connection therewith."
It should be noted that, contrary to the Carrier's assertion
on the property, the June 7, 1990 Bill of Sale for the San Antonio
Depot is silent on the question of which party was to be
responsible for moving those of the Carrier's physical assets which
had been excluded from the sale.
What is uncontroverted is that, at the time the disputed work
was performed, the City of San Antonio was the owner of the San
Antonio Depot and therefore had control over the premises and all
property located thereon, there being no contrary provision in the
Bill of Sale. while it opted to allow the Carrier to use its own
forces to remove certain physical assets, such as signal items and
communication equipment, it also opted, for reasons which are
unclear from the record, to expend taxpayer funds on various dates
over a three-month period to move certain office equipment which
had been excluded from the terms of the sale.
Since the Carrier had no control over the City's decision as
to which forces were to perform the work in dispute, the Board must
conclude, based on well-established precedent, that the Carrier did
not violate the Agreement in this`instance.
AWARD
Claim denied.
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ORDER
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 9th day of November 1994.