Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35328
Docket No. MW-33261
01-3-96-3-737
The Third Division consisted of the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside forces
(R&R Construction) to perform Maintenance of Way work (peddle
rail and track material, upgrade mainline track by replacing
existing rail and other related track material) between Mile Posts
498 and 503 on the New Town Subdivision beginning June 5, 1995
and continuing (System File R1. 037 / 8-00238 / 0-0043-105).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with advance written notice of its
intention to contract out said work as required by Rule 1.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Section Foreman D. Ness, Truck Operator N. Nelson,
Section Laborer D. Gullickson, Laborer J. Jensen and Tractor
Operator A. Speten shall each be allowed four hundred twenty-four
(424) hours' pay at their respective straight time rates and all
overtime expended by the outside forces in the performance of the
above-described work and they shall each be credited for vacation
and fringe benefits lost as a result thereof."
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.
Form 1 Award No. 35328
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Parties to said dispute were given due notice of hearing thereon.
On May 1, 1995, the Carrier notified the Organization that:
"As a matter of information, this will serve to confirm the sale to PlazaMakoti Equity Elevator of a
which extends from Prairie Junction to Plaza, North Dakota.
Based on The Elevator's desire to expand and the continual pressure from
the Burlington Northern and trucks to secure this business, Carrier has
agreed to sell the portion of line involved.
Completion of this sale will allow The Elevator to own, rehab and maintain
the line in the future, however, allowing the Carrier to continue operating
thereon.
Should the Organization desire further details related to this sale, a
member of my staff will be available to you at your request."
At the May 4 conference it was the Organization's position that the sale of the
track required ICC approval, and without said approval the sale would not be "properly
processed." The General Chairman further maintained that, by virtue of the
Agreement, any work performed on the four-mile section of Plaza track accrues
exclusively to BMWE members. For its part, the Carrier asserted that the track in
question was a spur track that serviced the elevator. The Carrier further advised that
it would maintain a certain portion of the track "at industry expense." Finally, the
Carrier reiterated that is was not leasing back trackage rights, but merely retaining an
easement to meet "common Carrier obligations."
On August 17,1995, the Organization submitted a claim alleging the Carrier had
violated Rules 1, 2, 3, 4, 5, 6, 10 and 14 of the Agreement when it assigned outside forces
(R&R Construction) to perform work that belongs to employees represented by the
Organization. Additionally, the Organization asserted that said work was performed
sans proper notification to the General Chairman. According to the Organization, the
Claimants were willing and available to perform the work in dispute, and as remedy,
should be compensated for a total of 424 hours at the pro-rata rate. Finally, the General
Chairman contended that the track in dispute is railroad track and not spur track as the
Carrier alleged, thereby rendering it subject to ICC jurisdiction.
The Organization's position was premised primarily upon its assertion that the
portion of track in dispute could not have been properly sold sans ICC approval.
Additionally, the General Chairman asserted that the work that R& performed on the
four-mile portion of track accrues to members of the BMWE. From the outset, the
Carrier maintained and the Organization failed to effectively refute that the track in
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01-3-96-3-737
dispute was sold, and that it no longer was subject to the Carrier's dominion and
control. A review of the record reveals that the trackage in question was sold on April
10, the Carrier received the funds affiliated with that sale on May 1, 1995, and
thereafter the track was the property of another. Inasmuch as the Carrier no longer
had any control over the land or trackage, it had no control or contractual obligation
concerning who performed the improvements. Although the Organization asserted that
the work accrued to its members, there is no evidence on this record that supports that
assertion. Finally, whether the Carrier needed ICC approval in these circumstances is
an issue over which this Board has no jurisdiction and, therefore, we decline comment.
Based on the foregoing, this claim is denied.
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 16th day of February, 2001.