In 1991, METRA planned a railroad excursion for approximately 400 guests between Chicago and Spaulding, Illinois, in conjunction with its hosting of Operation Lifesaver. The Carrier issued track warrants for a specific length of time to permit METRA to operate over a portion of its track. During the trip, the train was stopped at Smith Road, a rural location on the Carrier's track, where the guests were met by buses which transported them to lunch at a restaurant in St. Charles. In order to enable the buses to properly maneuver, METRA spread additional gravel in an area adjacent to the track and southeast of the railroad crossing. METRA also provided wooden platforms for ease of tour participants in making the transition from train to bus. The train remained parked at Smith Road until the participants returned from lunch, and the walkways were removed by METRA when the train departed the area.
This claim involves the hauling and grading of gravel performed by METRA employees at the Smith Road location. The Organization argues that this work, regardless of why it was performed, is contractually reserved to its employees who have customarily and historically performed work of this nature on Carrier's right of way. It contends that the Carrier must have known of the performance of this work, and cannot claim lack of control for work performed on its property from which it derived a benefit. The Organization requests the granting of a monetary remedy to Claimants, a crane operator and truck driver, despite the Carrier's "fully employed" defense, citing Third Division Awards 17224, 29232, 30035, 30867.
The Carrier argues that no contracting out occurred in this case, relying upon Third Division Award 31013. It contends that it did not authorize METRA employees to perform any work, was not aware of its performance, did not enter into any contract concerning this work, it made no payment nor derived any benefit from it, and it exercised no control over the work. The Carrier states that the entire project was within METRA's control. It also argues that the work of transporting and spreading gravel is not reserved exclusively to the Organization's employees nor traditionally performed by them. The Carrier asserts that no pecuniary loss was suffered by any Claimant, thereby negating the appropriateness of any monetary damages. Third Division Award 29741.
The Organization's arguments raise two issues in this claim. First, whether the disputed work was contracted out in violation of the Scope rule, and second, whether Form 1 Award No. 31650
the Carrier is responsible for applying the terms of its Agreement to work performed on its right of way regardless of its knowledge of, or control over, such work.
With respect to the first 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 Organization cannot claim improper contracting out in violation of the Scope rule. Third Division Awards 31013, 23422, 20644, 20280. We find no evidence in this record that the Carrier instigated, controlled, paid for, or benefited from the work in issue. Thus, we find no improper contracting out in this case.
With respect to the second argument raised by the Organization, the Board finds no evidence to support its contention that the Carrier knew about the performance of the work in issue. Prior knowledge that a train would be stopped on its line for a period of time, and the issuance of a track warrant to operate over its tracks, does not prove that the Carrier was informed by METRA that it intended to apply additional gravel near Smith Road. to facilitate bus movement in the area From the record we are unable to conclude that the Carrier derived any ascertainable benefit from this additional gravel located adjacent to a remote section of its track which is not normally used as a passenger loading area. This fact differentiates this case from the situation in Third Division Award 25402, where a majority of the Board held that the unauthorized performance by others of a function which needed to be performed by Carrier's employees in any case, bestowed a benefit on the Carrier which should have been transferred to the employees under the Agreement.
The Board concludes that the Organization has failed to meet its burden of proving that a contracting out occurred, or that the Carrier had knowledge of the performance of the work in issue and benefited from it.
This Board, after consideration of the dispute identified above, hereby orders than award favorable to the Claimant(s) not be made.