Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32868
Docket No. MW-32096
98-3-94-3-488
The Third Division consisted of the regular members and in addition Referee
Edwin H. Berm when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (A&R Fence Company) to perform Bridge and Building
Subdepartment work (fence installation) at the old Richmond St.
Facility on the Delaware Avenue Branch in Philadelphia,
Pennsylvania beginning October 1,1992 and continuing (System
Docket MW-2902).
(2) The Carrier further violated the Agreement when it failed to
provide advance written notice of its intention to contract out the
Maintenance of Way work described in Part (1) hereof.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, B&B Foreman J. L. Royer, Mechanics J. Love, M. D.
Tallarida, G. A. Golden, C. L. Daub, E. Volbrig and Structural
Welder R J. Dimatteo shall each be allowed eight (8) hours' pay, at .
their respective straight time rates, for each day that the
contractor's forces performed the work in question, beginning on
October 1,1992 and continuing."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds- that:
Form 1 Award No. 32868
Page 2 Docket No. MW-32096
98-3-94-3-488
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.
Although there is some confusion in the record concerning the specific dates and
particular contractor involved, the evidence shows claim was filed because the Carrier
utilized a contractor to install an eight foot high chain link fence around certain
property at the old Richmond Street facility on the Delaware Avenue Branch in
Philadelphia. The Carrier contended that the property involved was non-operating and
abandoned and further designated for major development. The Organization disagreed
with that position and contended that "the actively used Delaware Avenue Branch runs
through the property."
The Organization has the ultimate burden here. Stripped to its essence, the
Organization contends the work was Scope covered, while the Carrier asserts that the
property was abandoned and the Organization states the contrary. We note that this
Board has previously addressed this issue in Third Division Award 32341 which
involved debris clean up at the Delaware Avenue Industrial Track at Richmond and
Cumberland Streets in Philadelphia where this Board found:
".
. . Me
do hold that the Organization has failed to sustain its burden of
proving that the work was performed on property which fell within the
coverage of the Agreement . . . Carrier-owned property which is not used
for purposes involving the operation or maintenance of the railroad does
not come under the Scope Rule of the Agreement."
Given the conflicting status of the record on the abandonment point, and the fact
that we do not find Award 32341 to be palpably in error, we are satisfied that the
Organization's ultimate burden has not been met to overcome the rationale of Award
32341. The claim shall be denied.
Form 1 Award No. 32868
Page 3 Docket No. MW-32096
98-3-94-3-488
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 21st day
of
October 1998.