Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32626
Docket No. MW-31252
98-3-93-3-220
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
:
(The Kansas City Southern Railway Company (former
( Louisiana & Arkansas 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
contractor (A. K. Gillis) to unload crossing track panels at road
crossings at Mile Posts T-120, T-118.5 and T-98.4 on October 8;
1991 [Carrier's File 013.31-320(501)1.
(2) The Agreement was further violated when the Carrier assigned an
outside contractor (Harold Lucket who was subcontracted by A. K.
Gillis) to unload crossing track panels at the road crossing north of
Winnsboro. Texas on October 21, 1991 Carrier's File 013.31320(502)1.
(3) The Agreement was again violated when the Carrier assigned an
outside contractor (A. K. Gillis) to unload rubber crossing panels at
Mile Post T-130. Highway 11. north of Winnsboro, Texas on
October 11. 1991 (Carrier's File 013.31-320(503)1.
(4) The Carrier also violated Article IV of the May 17, 1968 National
Agreement when it failed to furnish the General Chairman with
advance written notice of its intention to contract out said work.
(5) As a consequence of the violations referred to in Parts (l) and/or (4)
above. Section Foreman R. Onev and Laborers M. D. Bradshaw,
Form 1 Award No. 32626
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98-3-93-3-220
W. B. Linwood and A. J. Ray shall each be allowed pay at their
respective straight time rates for an equal proportionate share of
the six (6) man-hours expended by the outside forces.
(6) As a consequence of the violations referred to in Parts (2) and/or (4)
above, Section Foreman R. Oney shall be allowed five (5) hours' pay
at his straight time rate for the total number of man-hours
expended by the outside forces.
(7) As a consequence of the violations referred to in Parts (3) and/or (4)
above, Section Foreman R. Oney and Laborers M. D. Bradshaw,
W. B. Linwood and A. J. Ray shall each be allowed pay at their
respective straight time rates for an equal proportionate share of
the ten (10) man-hours expended by the outside forces."
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.
In the three claims involved in this Docket, the Organization contends that the
Agreement was violated when Carrier utilized employees of a contractor to unload
company material at several locations. It is not alleged that any other work was
performed at the site of the claims. only that the unloading of company track material
was performed by a contractor's employees. The items unloaded were track material
used in crossing repair-maintenance. The Organization also contends that intent to subcontract notic
were not followed in these instances.
Form 1 Award No. 32626
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98-3-93-3-220
Carrier responds that the Organization does not hold exclusive right to the work
of unloading company track material, and that it was not necessary to follow the notice
requirements of Article IV, when a contractor delivered crossing track panels and
rubber crossing panels to the job site on the days involved in the three claims before the
Board.
The precise issue involved in these claims is not new to the Board. The issue of
using a contractor to deliver track material to the work site was visited in Third Division
.ward 29252. In that Award. involving the same parties involved here, the claim of the
Organization was denied. There the Board noted:
"At issue in this case is whether or not the Agreement, particularly
Article IV of the May 17, 1968, National Agreement, was violated when
Carrier utilized the services of a
contractor to unload company material.
Unloading of company material. even it the company material is to be
subsequently used in maintenance of way track, bridge and/or structure
work, is not a task over which maintenance of way forces are entitled to
make any claim. All classes of carrier employees, over the years engaged
in the work of unloading and receipt of company material for their own
work and that of other classes. Additionally vendors and contractors when
appropriate have unloaded company material upon its receipt."
There is nothing in the record to indicate to the Board that the conclusions
reached in Award 29252 is in error. In the circumstances that exist here the conclusions
reached in Award 29252 are appropriate as all that seems to be involved is that a
contractor delivered company material to a work site. Absent a showing that other
work was performed by the contractor. it was not necessary to give an Article IV notice.
The claims will be denied.
AWARD
Claim denied.
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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 23rd day of June 1998.