Parties to said dispute waived right of appearance at hearing thereon.
Carrier and the Arizona Department of Transportation Highways Division (State) entered into an agreement to construct a storm water drainage system, which required the laying of pipe underneath Carrier's track to realign a channel. In order for the State to construct the wash culvert, a shoo-fly was built to temporarily realign Carrier's track. The agreement stipulated that all labor, material, tools and equipment for the construction of the culvert and shoo-fly on Carrier's property would be furnished by the State, whether by competitive bid contract or otherwise. Carrier agreed to remove and replace the tracks over the area under construction, the actual cost of which was to be reimbursed by the State. The agreement also specified that, as part of the State's flood control project, the construction in issue was of no ascertainable net benefit to the Carrier.
The Organization argues that it is undisputed that Carrier's track forces previously performed identical work to that contracted out in this case, which is Scope covered, and failed to give advance notice as required by Article IV. It asserts that Carrier failed to meet its burden of proving lack of control, which is an affirmative defense. The Organization contends that Carrier's repeated notice violations are sufficient to subject it to an award of damages. The Carrier asserts that it was within its rights to enter into an agreement with the State, it did not contract out any work, it had no control over who was going to perform the work, and it did not pay for or benefit from the work. It argues that under such circumstances, the work in issue is not covered by the Scope Rule, and does not require advance notice for contracting.
The determinative issue is whether the disputed work of constructing the shoo-fly at Cherry - 22nd Street in Tucson, Arizona, was contracted out under Carrier's control. Third Division Awards 30944 and 30976, relied upon by the Organization, do not raise this issue. This Board has consistently held that where work is not performed at Carrier's instigation, nor under its control, is not performed at its expense or exclusively for its benefit, the contracting is not a violation of the Scope Rule of the Agreement. Third Division Awards 25011, 23422, 20644, 20280, 20156. In reviewing the record in this case, the Board agrees with Carrier that its agreement with the State does not constitute contracting out work as that concept is contemplated within the meaning of the Scope Rule. We find no evidence that Carrier instigated or retained any control over the shoo-fly construction disputed in this case, or that it was performed at carrier's expense or exclusively for its benefit. Third Division Award 26082. Form 1 Award No. 31234
The record reveals the opposite to be true. Moreover, there is no evidence that Carrier would have undertaken this project absent the State's request and need to lay pipe and realign a storm drainage channel on Carrier's property. Third Division Award 26816.
Having found that Carrier did not contract out the work in issue under the terms of the Agreement, it follows that it was not under any obligation to provide the General Chairman with notice under Article IV of the May 17, 1968 National Agreement. Third Division Awards 28788, 28786, 28248, 26816, 26082, 24078, and 19957.
This Board, after consideration of the dispute identified above, hereby orders than award favorable to the Claimant(s) not be made.