Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32370
Docket No. MW-31251
97-3-93-3-213
The Third Division consisted
of
the regular members and in addition Referee
John C. Fletcher when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Chesapeake &
( Ohio Railway Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Rail Tech Construction) to perform Maintenance
of
Way
work (remove Westvaco Lead) near Mile Posts 290.8 and 291.2 on
the Allegheny Subdivision near Covington, Virginia on February 11
and 12, 1992 [System File C-TC-5308/12(92-598) COS].
(2) The Agreement was further violated when the Carrier assigned
outside forces (Rail Tech Construction) to perform Maintenance
of
Way work (dismantle sidings) near Mile Posts 290.2 and 290.7 near
Covington, Virginia on February 17, 1992, instead
of
assigning
Covington Section Force 5GC1 [System File C-TC-5315/12(92597)1.
(3) The Agreement was further violated when the Carrier failed to give
the General Chairman advance written notice
of
its intent to
contract out said work or discuss the matter in conference in good
faith prior to contracting out said work as required by the October
24, 1957 Letter
of
Agreement (Appendix `B').
(4) As a consequence
of
the violation referred to in Parts (1) and/or (3)
above, furloughed employes G. C. Simpson, R W. Bocook and R A.
Bocook shall each receive fourteen (14) hours' pay, twelve (12)
Form 1 Award No. 32370
Page 2 Docket No. MW-31251
97-3-93-3-213
hours at their respective straight time rates and two (2) hours at
their respective time and one-half rates.
(5) As a consequence of the violation referred to in Parts (2) and/or (3)
above, Messrs. L. Entsminger, J. Jackson and P. Hanna shall each
receive ten (10) hours' pay at their respective time and one-half
rates."
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.
Parties to said dispute were given due notice
of
hearing thereon.
Rule 83 and Appendix B requires that before Carrier contracts out Maintenance
of
Way work it must discuss the matter with the Organization's General Chairman. In
the matter under review here two elements
of
Maintenance
of
Way work were
performed by Rail Tech Construction and the matter was never discussed with the
Organization's General Chairman. This is a violation
of
Rule 83 and Appendix B.
Accordingly, the claim has merit.
Carrier argued before this Board that it did not maintain control
of
the trackage
in question at the time Rail Tech Construction was utilized to remove the Westvaco
Lead and dismantle the sidings between MP 290.2 and 290.7. In the on-the-property
handling the Organization repeatedly asked that Carrier support this assertion with
some type
of
evidence. Carrier failed to do so then, and under well established
authority, it is foreclosed from offering such evidence for the first time before this Board.
The claims will be sustained as presented.
Form 1 Award No. 32370
Page 3 Docket No. MW-31251
97-3-93-3-213
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 30th day of December 1997.