Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35846
Docket No. SG-35285
01-3-99-3-145
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Wheeling and Lake Erie Railway Company
STATEMENT OF CLAIM:
"Claim of the General Committee of the Brotherhood of Railroad
Signalmen on the Wheeling and Lake Erie Railway Company:
Claim on behalf of the D. L. Sampsel, M. Shelter, T. E. Durant, T. P. Riley
and M. A. Bungert, Sr., for payment for 80 hours each at the time and
one-half rate, account Carrier violated the current Signalmen's
Agreement, particularly the Scope Rule, when it used an outside
contractor to make repairs to the Robertsville Tunnel, from October 13
through October 14, 1997 [sic]. Carrier's File No. 98-BRSMW.02.
General Chairman's File No. 231/971116. BRS File Case No.
10906-W&LE(M)."
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.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 35846
Page 2 Docket No. SG-35285
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By letter dated October 2, 1997, the Carrier notified the Organization that due
to severe damage to the Robertsville Tunnel and in order to secure stability and because
the repairs required special equipment and skills not available within the Carrier, the
Carrier intended to contract out repairs to that tunnel. This claim followed as a result
of the work being performed by an outside contractor, HEB Construction, during the
period October 13 through 24, 1997.
The Scope Rule provides in pertinent part:
"RULE NO. 1 SCOPE RULE
This agreement governs the rates of pay, hours of service and working
conditions of all employees engaged in the construction, maintenance,
inspection, repairing, and salvage of the following owned by the Railway:
A. All structures, signs, tracks, roadbeds, right of ways,
road crossings, and their components on the road and
in yards, including all trackand switch appurtenances
and related systems. As well as any other work
generally recognized as maintenance of way or bridge
and building work.
C. This shall not prevent the carrier from contracting
services requiring special skills or equipment not
available to the carrier i.e. ballast cleaner, Sperry rail
defect detector, road asphalt equipment, etc."
Under the facts presented and in light of Rule 1(C), the Organization's burden
to demonstrate a violation of the Agreement has not been carried.
The record reveals that the special equipment not available to the Carrier
including a backhoe, frontend loader, dump truck, rock drills, shotcrete equipment and
large capacity compressor were needed for this project. Further, while the record shows
Form 1 Award No. 35846
Page 3 Docket No. SG-35285
01-3-99-3-145
that while the Claimants have over 70 years combined experience in bridge and building
work and may have assisted in some of the work in the past (e.g., gunite work), the
record does not show that the Claimants have performed the work to the extent
necessary to defeat the Carrier's position that special skills not possessed by them were
needed to perform the work. Based on what has been presented, Rule 1(C) permits the
Carrier to contract the work involved in this case.
The claim will be 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 18th day of December, 2001.