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.
By letter dated July 23, 1998 the Organization alleged that the Carrier had contracted out scope protected work in violation of the Agreement. It maintained that the contractor utilized the same equipment that the Claimants utilized and performed work, such as spacing cross ties, placing tie plates, laying rail, tamping and other work to dismantle and rebuild mainline track. As the work was historically and customarily performed by the employees, its contracting out was a clear Scope Rule violation. As the work was performed on Carrier property without required notice to the Organization, the Claimants suffered a clear loss of work.
The burden of proof clearly lies with the Organization. New issues raised for the first time in its Submission and not presented on the property were not considered by the Board. In this claim, the Carrier notified the Organization that all the work herein disputed was performed by the State of Tennessee. The on-property record substantially proves that the construction was at the direction and control of the State which was building a new underpass. The Carrier clearly asserted that all the work was contracted out by the State of Tennessee and for the benefit of the State, with no gain or loss in terms of trackage by the Carrier. Most importantly, the Board notes that the Carrier not only denied any contract between itself and D&E Contractors, but in its December 15, 1998 declination stated:
The Board must find that the Organization failed to meet its burden of proof. We find no evidence presented, nor refutation by the Organization to overcome the Carrier's position. The Board has long held that the Carrier is not liable for work performed on its property over which it can be shown that it has no direct control and for which it is not contracting out to evade its Agreement. Because there is no showing by the Organization that the Carrier did the contracting out, or was involved therein to evade its responsibilities, the burden has not been met. Because the Carrier has shown it did not initiate or control the disputed work, it had no notification responsibilities. This is consistent with Awards on this point (Third Division Award Nos. 35634, 33936, 33210, 32354, 32319, 32316, 32308, 32274, 31926, 31663, 31234, 26816, 24078, 23422, 19957, 17002, 15491 and 13857 among numerous others).
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.