Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32124
Docket No. MW-31796
97-3-94-3-69
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Cedar Rapids and Iowa City Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned an outside
concern to perform Maintenance of Way work (clear snow and
apply sand to the parking lot) at the Cedar Rapids Yard Office on
January 8, 1993.
(2) The Carrier also violated the provisions of Rule 1(b) when it failed
to give the General Chairman proper advance written notice of its
intention to contract out the work in question and to conference
same.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Messers. B. Woodson and R. Howard shall each be
compensated for `*** two hours and forty minutes pay at their
respective time and one-half rate. ***"'
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
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.
Form 1 Award No. 32124
Page 2 Docket No. MW-31796
97-3-94-3-69
Parties to said dispute were given due notice of bearing thereon.
Claimants hold seniority in the Carrier's Maintenance of Way Department.
Rather than using Claimants to perform the work, on January 8, 1993, the Carrier,
without prior notice to the Organization, utilized a contractor to remove snow and sand
the parking lot located adjacent to the Yard Office at Cedar Rapids, Iowa. This claim
followed.
Rule 1(b) states in pertinent part that:
"Employees included within the scope of this Agreement shall perform all
work in connection with the construction, maintenance, repair and
dismantling of tracks, roadbeds, structures, facilities and appurtenances
related thereto, located on the right-of-way of the Carrier."
The Organization has not shown that work
of
removing snow and sanding the
parking lot adjacent to the Yard Office is clearly "located on the right-of-way
of
the
Carrier." Without such a showing, the Organization's burden to establish all the
elements of its claim has not been met. We must therefore deny the claim.
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 13th day
of
August 1997.
LABOR MEMBER'S DISSENT
TO
AWARD 32124. DOCKET MW-31796
(Referee Benn)
A dissent is required since this award is palpably erroneous.
The Majority totally disregarded the central issue of the
claim, i.e., the advance written notice prior to contracting out
this work. During the handling of this dispute on the property,
the Carrier never denied that it had previously assigned these very
claimants to perform snow removal and sanding work at the very same
parking lot. The Agreement states that employes included within
the Scope of this Agreement shall perform all work in connection
with the construction, maintenance, repair and dismantling of
tracks, roadbeds, structures, facilities and avvurtenances related
thereto, located on the right of way. Inasmuch as the Carrier had
previously assigned said employes to perform the work, at the very
least, establishes the Organization's right to receive notice.
Hence, from a review of the record, the issue that whether the work
involved was work customarily and historically performed by
maintenance of Way employes was answered to the affirmative. There
can be no question but that the work was scope covered and should
have been assigned to Maintenance of Way employes. The Majority
erred by not so ruling.
Labor Member's Dissent
Award 32124
Page Two
Award 32124 is palpably erroneous and I, therefore, dissent.
~R7pectf ly submitted,
oy . Robinson
Labo Member