PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33208
Docket No. MW-32428
99-3-95-3-308
The Third Division consisted
of
the regular members and in addition Referee
John H. Abernathy when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
(Consolidated Rail Corporation
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside forces
(CES) to perform Track Department work (cleaning the right
of
way
of
coal, loading the coal into trucks to be transported to a
nearby site and reloading into gondola cars) at Mile Post 244,
Danbury, Ohio, commencing January 31, 1994 and continuing
(System Docket MW-3374).
(2) The Carrier violated the Agreement when it assigned outside forces
(CES) to perform Track Department work (cleaning the right
of
way
of
coal, loading the coal into trucks to be transported to a
nearby site and reloading into gondola cars) at Mile Post 244,
Danbury, Ohio, on February 7, 8, 9, 10 and 11, 1994 (System
Docket MW-3370).
(3) The Carrier further violated the Agreement when it failed to give
the General Chairman fifteen (15) days' advance written notice
of
its intent to contract out the work described in Parts (1) and (2)
above as required by the Scope Rule.
(4) As a consequence of the violations referred to in Parts (1) and/or (3)
above, Claimants D. Canas, R. I. Tate, H. Caudill, J. Mowka and
J. Manning shall each be allowed eight (8) hours' pay at their
Form 1
Page 2
FINDINGS:
Award No. 33208
100
Docket No. MW-32428
99-3-95-3-308
respective straight time rates for each day worked by the outside
contractor commencing January 31, 1994 and continuing.
(5) As a consequence of the violations referred to in Parts (2) and/or (3)
above:
(a) Claimants D. Canas, J. E. Bryan, E. W. Wegman, D.
A. Stevens, C. J. Baughman, D. L. Gelacek, J. R.
Bumbaugh, J. Mowka, R. Isaac, D. Hamlin and J. A.
Flegle shall each be allowed twenty-four (24) hours'
pay at their respective straight time rates for
February 7, 8 and 11, 1994.
(b) Claimants D. Canas, J. E. Bryan, E. W. Wegman, D.
A. Stevens, C. J. Baughman, D. L. Gelacek, J. R.
Bumbaugh, J. Mowka, R. Isaac, D. Hamlin and J. A.
Flegle shall each be allowed sixteen (16) hours' pay at
their respective straight time rates and sixteen (16)
hours' pay at their respective time and one-half rates
for February 9 and 10, 1994.
(c) Claimants S. Marvin, S. Desko, R. J. Carpenter and
H. Caudill shall each be allowed sixteen (16) hours'
pay at their respective time and one-half rates for
February 9, 1994 and sixteen (16) hours' pay at their
respective time and one-half rates for February 10,
1994."
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.
Form 1
Page 3
herein.
Award No. 33208
Docket No. MW-32428
99-3-95-3-308
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
Parties to said dispute were given due notice
of
hearing thereon.
As a result
of
a derailment at Danbury, Ohio, in late January 1994, the Carrier's
mechanical and MW employees were recalled from furlough and utilized to clear the
mainline and repair the track damage.
Once that had been accomplished, the Claimants were again furloughed.
Beginning January 31, 1994 and continuing, Consolidated Environmental
Services (CES) began loading and hauling away coal that had spilled as a result
of
the
derailment. CES used their own equipment (two dump trucks, two front-end loaders,
and one dozer) and employees to perform this work.
The Organization claims CES moved the spilled coal from one side
of
the track
to the other, loaded the coal into dump trucks and hauled the reclaimed coal four miles
to Gypsum, Ohio, where it was loaded into gondola cars and transported to a recycler
for cleaning.
The Carrier contends that CES owned the spilled coal and was salvaging their
own property for resale. Salvaging material by the owner is not customarily done by the
Organization (See Third Division Awards 19994, 30901, 31522). As the work done by
CES is not customarily done by the Organization, then there is no need to give notice.
(Third Division Awards 27626, 27629, 30088, 30515.)
This Board holds that the Organization has the burden of proof in this instance.
To meet this burden the Organization must do more than make assertions and rely on
assumptions. The Organization must provide persuasive evidence showing that the work
in question accrues to them by contract right as customary performance. The
Organization failed to provide such evidence. The record shows that the spilled coal was
owned by CES and CES was salvaging the spilled coal for resale. There is no evidence
in this record that the recovery of a salvage product owned by another company is
customarily done by the Organization. Under these conditions no notice is required.
Form 1
Page 4
Award No. 33208
"r
Docket No. MW-32428
99-3-95-3-308
AWARD
Claim denied.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
low
Dated at Chicago, Illinois, this 21st day
of
April 1999.