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.
On May 27, 1994, the Organization submitted a claim on behalf of the Claimant for lost work opportunities when the Carrier allegedly used an outside contractor to perform work the Organization claims has historically and customarily been performed by Maintenance of Way employees.
According to the Organization, between April 4 and November 30, 1994, the Carrier contracted with Rail Systems, Inc. to sort good ties from scrap ties on the Watertown Subdivision between Mile Post 117 and Mile Post 128. The contractor removed the scrap ties and the good ties were retained by the Carrier. This was work historically reserved to Maintenance of Way forces, in the Organization's view. Moreover, the Carrier failed to give the General Chairman notice that it planned to contract out this work.
On the former Chicago, Milwaukee, St. Paul and Pacific Railroad Company territory, Third Division Award 24280 found a distinction between the sale and removal of Carrier property by an outside purchaser and the dismantling and retention of material that would continue to be used by the Carrier. The former was not deemed to be work reserved to Maintenance of Way employees by their Scope Rule while the latter was considered work coming within their Scope Rule.
The Board finds Award 242801ogical and persuasive. Naturally, the Carrier has the right to sell its scrap material to an outside purchaser. However, the dismantling of material that the Carrier retains for future use is work customarily and normally performed by Maintenance of Way employees on the former Milwaukee Road territory.
In accordance with the findings of Award 24280, the claim is remanded to the parties to determine how much of the work performed by Rail Systems, Inc. between April 4 and November 30, 1994, involved the removal and purchase of scrap ties and Form l Award No. 34052
how much involved the dismantling of good ties retained by the Carrier for its own use. The latter work should have been assigned to the Claimant and he is entitled to compensation for this lost work opportunity at his straight time rate of pay.
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
THIRD DIVISION
much of the work performed by Rail Systems, Inc. between April 4 and November 20, 1994, involved the salvaging of good ties retained by the Carrier for its own use because the Claimant is entitled to compensation for this lost work opportunity at his straight time rate of pay. The parties were unable to reach an agreement regarding how many such ties were retained by the Carrier for its own use. The Carrier contends that 6600 ties were retained. The Organization claims that 26,000 ties were retained.
The Carrier's calculation is based on the Chicago Area Manager of the Engineering Department, who was responsible for the tie dismantling project. The Engineering Department stated that a total of 66,000 ties were removed from the 22 miles of track and that 10% (6,600) of these ties were reusable.
The Organization's calculation was based on the estimate of a Flagman who worked on the Watertown Section flagging for Rail Systems, Inc. during the tie dismantling project. The Flagman claimed that there were "thousands more" than 6,600 ties recovered. He said it was "more tike" 26,000 ties.
There is no objective basis for the Flagman's estimate that more like 26,000 ties were recovered. This is conjecture on his part. He never claimed that he actually counted the ties that were removed and recovered by the Carrier for its own use. Page 2 Serial No. 406
The Carrier stated that the Claimant could sort and load 1,500 ties per day. Therefore, it would have taken him five days to sort and load the 6,600 ties that were retained from the project. It made him whole for this lost work opportunity at his straight time rate of pay. That fulfilled the Carrier's obligation. The Claimant is not entitled to any addition remuneration.
Referee Robert M. O'Brien who sat with the Division as a neutral member when Award 34052 was adopted, also participated with the Division in making this Interpretation.