Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35977
Docket No. MW-32960
02-3-96-3-339
The Third Division consisted
of
the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood
of
Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside forces
to perform Maintenance
of
Way work (brush spraying and
brushcutting) in the areas of Duluth Dock, Proctor Hill, Missabe
Division Main Lines and the Interstate Branch on October 26
through November 23, 1994 (Claim No. 39-94).
(2) The Carrier further violated the Agreement when it failed to give
the General Chairman a proper advance written notice of its intent
to contract out the work as required by Supplement No. 3.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, furloughed Trackmen L. Maki, D. Anderson, R. Stenroos
and A. Van Blyman shall each be allowed an equal proportionate
share of the total number of man-hours expended by the
contractor's forces at the trackman's straight time rate of pay."
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. 35977
Page 2 Docket No. MW-32960
02-3-96-3-339
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
The is a dispute over the Carrier's contracting out brushcutting work.
By notice dated August 8, 1994, the Carrier advised the Organization:
"This is to notify you of the Carrier's intent to hire an outside contractor
. . . to perform brush spraying around the entire system and to cut brush
under pole lines, bridges, crossings and other selected locations along the
right-of-way in the following areas:
A. Duluth Docks
B. Proctor Hill
C. Missabe Division Main Line
D. Interstate Branch
This work will commence as soon as practicable and is consistent with past
practice of the Carrier using outside contractors to perform such work
under Supplement 3.
Please advise if you wish to further discuss the matter."
Conference was subsequently held.
In light of that notice, the Organization's assertion that it was not given a proper
advance written notice of the Carrier's intent to contract out the work must be rejected.
With respect to the merits, Supplement No. 3 from December 1, 1969 provides, in
pertinent part:
r
"(d) It is further understood and agreed that the Company can continue
in accordance with past practice the contracting of right-of-way
cutting, weed spraying, ditching and grading."
Form 1 Award No. 35977
Page 3 Docket No. MW-32960
02-3-96-3-339
The Carrier asserts that it has routinely used outside forces to perform the
disputed work. On the property, the Organization conceded that, in the past, the
Carrier had used outside forces for the disputed work ("[p]rior to that date [December
1, 1969], a mixed practice did exist in connection with the right of way cutting, weed
spraying . . . "). However, the Organization argues for a sustaining Award with the
position that ". . . since that time, the carrier has not contracted out this work but has
assigned [M]aintenance of Way employes to perform the right of way cutting."
Putting aside the conflict in the record concerning whether the Carrier had used
outside forces to perform this work since December 1, 1969 (which conflict would
ordinarily dictate a finding in a contract dispute that the Organization's factual
assertion has not been established) a reading of the above-quoted provision of
Supplement No. 3 and the Organization's concession that prior to December 1,1969 "a
mixed practice did exist in connection with the right of way cutting, weed spraying..."
ends the inquiry. According to the Organization, prior to December 1,1969, the Carrier
used outside forces to perform the disputed work. Under Supplement No. 3, " . . . the
Company can continue in accordance with past practice the contracting of right-of-way
cutting, weed spraying . . . ." That is what the Carrier did in this case - it contracted the
work as Supplement No. 3 specifically allows.
The claim must 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 19th day of March, 2002.