NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION
Award No. 31522
Docket No. MW-30588
96-3-92-3-342
The Third Division consisted of the regular members and in addition Referee
Edwin H. Berm when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The agreement was violated when the Carrier assigned or otherwise
allowed outside forces (employes of the City of Elizabeth, New Jersey) to
perform Maintenance of Way work (operating a log loading truck and a
pick-up truck to remove track) on the Conrail's Port Avenue Branch on
the New Jersey (Philadelphia) Division from July 30 through August 3,
1990 (System Docket MW-1748).
(2) The Agreement was further violated when the Carrier did not give
the General Chairman prior written notification of its plan to assign said
work to outside forces.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Foreman G. Fallon, Vehicle Operator D. Seamanik, Welder F.
Swarrow and Trackmen J. Hill, G. Santiago, C. Nixon, F. Cueva, P. Rojas,
W. Martinez and E. Swarrow shall each be allowed forty (40) hours' pay
at their respective straight time rates of pay for the time worked by outside
forces."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 31522
Page 2 Docket No. MW-30588
96-3-92-3-342
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.
Parties to said dispute waived right
of
appearance at hearing thereon.
The claim alleges that certain track retirement work was contracted out by the
Carrier without timely notification to the Organization. However, the record further
discloses that the track was abandoned property and not part
of
rail operations.
Because the track in dispute was abandoned property, Third Division Award
19994 requires a finding that the contracting out allegations are without merit:
"... [T]he principle issue herein is whether the work
of
dismantling the
abandoned line falls within the scope of the Agreement. We have held in
a long line of awards that work on facilities owned by Carrier, but used for
purposes other than the operation or maintenance
of
the railroad, do not
come under the scope rule
of
the agreement (Awards 19639, 19253, 9602,
4783 and others). With respect to abandoned facilities we have ruled
similarly. For example, in Award 12918 we said:
'Since the Agreements pertain to work of carrying on
Carrier's business as a common carrier, we must conclude
that the work of dismantling and removing completely the
abandoned property does not fall within the contemplation of
the parties. The work cannot be considered maintenance,
repair or construction."'
With respect to the Organization's arguments in this case relying upon the BergeHopkins letter of De
issue of whether the Berge-Hopkins [letter] is applicable has now been resolved in an
Award which is confined solely to this question. Public Law Board No. 1016, Award 66A,issued on J
Form 1 Award No. 31522
Page 3 Docket No. MW-30588
96-3-92-3-342
this Carrier's property."). Those arguments made by the Organization are therefore
not persuasive.
Based on the above, the claim must be denied.
AWARD
Claim denied.
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 25th day of July 1996.