Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33419
Docket No. MW-32343
99-3-95-3-179
The Third Division consisted of the regular members and in addition Referee
Marty E. Zusman when award was rendered.
PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
(Brotherhood of Maintenance of Way Employes
(Consolidated Rail Corporation
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (J.M.G. Excavating Co.) to perform Maintenance of Way
work (roadbed repairs) between Mile Posts 48.5 and 46 on the
Trenton Line beginning November 8, 1993 and continuing (System
Docket MW-3299).
(2) As a consequence of the violation referred to in Part (1) above,
Messrs. W. Pavlick, D. Klucsarits, L. Diehl, B. Lebitz, R. Nemeth
and A. Flynn shall each be allowed ten (10) hours' pay, at their
respective straight time rates, for each day (Monday through
Thursday) and all overtime worked by the contractor's forces, at
their respective time and one-half rates, beginning November 8,
1993 and continuing."
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.
Form 1 Award No. 33419
Page 2 Docket No. MW-32343
99-3-95-3-179
herein.
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
Parties to said dispute were given due notice
of
hearing thereon.
The Board has carefully reviewed the instant claim. With minor variation our
study
of
this claim finds it essentially similar to that decided in Third Division Award
33418. While the former claim involved trucks and hauling, this dispute involves front
end and track loaders, rock chippers and excavators. The Organization alleges that
without notification the Carrier contracted out Scope protected work, which customarily
and historically belonged to and was performed by the employees. It rejects the
Carrier's assertions that it lacked equipment and available personnel to perform the
work. The Organization asserts that there were fully qualified operators available,
including the Claimants, as well as equipment available to rent.
The Board's review concludes that notification
of
the full project was made to the
General Chairman by letter
of
September 2,1993. That full project included equipment Iwo
rental for the Pennsylvania and Hagerstown to Oak Island Clearance Projects and
stated in pertinent part:
".
. . we intend to contract for the rental
of up
to 40 trucks, 2 three quarter
Excavators and D4 or larger Bulldozers, on an as needed basis in
connection [with the project]."
As we indicated previously, this claim is not for a distinct project, but for a small part
of
track on a very large project. In this instance, we hold that there is a lack
of
evidence
to find that the Carrier should piecemeal this single distinct few miles
of
track around
Skillman, New Jersey, from the entire project across two states on the Philadelphia and
New Jersey Seniority Districts.
AWARD
Claim denied.
Form 1
Page 3
Award No. 33419
Docket No. MW-32343
99-3-95-3-179
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
Dated at Chicago, Illinois, this 13th day of July 1999.
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