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.
This claim arose when the Carrier hired an outside contractor, Tampa International Forest Products (TIFP), to load and haul away ties that were removed by SPG Tie Force 5XT5 in the vicinity of Logan, West Virginia. The Organization filed the instant claim contending that the Claimants were on furlough and awaiting recall and should have been assigned the work. The Organization argued that the Claimants were available, qualified, and willing to perform the work involved herein. The Organization argues that the Carrier was in direct violation of Rule 83(b).
The Carrier denied the claim contending that it had sold the scrap ties to TIFF and that because the "ownership" of the ties had been transferred, TIFP was merely picking up its property. The Carrier argues that it did not violate the Agreement.
The Board reviewed the evidentiary record and finds that the Organization failed to meet its burden of proof that the Carrier violated the Agreement by allowing nonCarrier forces to
The Carrier demonstrated with sufficient proof that it had transferred ownership of the old crossties to another company, and therefore, that company had the right to remove those ties from the Carrier's right-of-way. There is a purchase and removal agreement which is part of the record.
The Board has held on numerous occasions in the past that once materials are sold to another company those materials are under the control of the purchaser and the purchaser can then determine who performs any work related to those materials. Because the ownership of the crossties had changed in this case, the Claimants had no protected right to demand the work from the Carrier. See Third Division Awards 30637 and 30224. Form 1 Award No. 32095
LABOR MEMBER'S DISSENT
TO
AWARD 32095, DOCKET MW-31630
(Referee Meyers)
This award is erroneous as the Majority failed to base its decision on the record and a dissent is required.
The premise of this claim was quite simple and uncomplicated. The Organization contended that the Carrier contracted out track work belonging to the employes represented by the BMWE, i.e., loading and hauling ties removed by an of this dispute on the property, the Carrier contended that the ties in question were sold and that the buyer was merely retrieving its property. The Organization promptly requested a copy of the sales agreement. Thereafter, the Carrier supplied a purported sales agreement to the General Chairman. Upon receipt of the alleged sales agreement, the General Ch contract was not a sale on an "as is, where is" basis, but that the Carrier was paying the contractor for each tie removed. As it was pointed out by the General Chairman, the agreement was actually a contract for services, not a sales agreement. The Carrier never disputed the General Chairman's findings. Hence, the Majority's conclusion that the material in question was sold to another company is not a factual representation Carrier and the outside contractor. The record clearly reveals that the Carrier violated the Agreement when it contracted out Labor Member's Dissent