Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36282
Docket No. MW-35495
02-3-99-3-400
The Third Division consisted of the regular members and in addition Referee
Richard Mittenthal when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Santa Fe Railway
( (former St. Louis-San Francisco Railway Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside forces
to perform Maintenance of Way work [using two (2) dozers, one (1)
backhoe, one (1) grader, two (2) foremen and ten (10) dump trucks in
the extension of a switching lead) at Harvard, Arkansas beginning
August 18, 1997 through September 18, 1997 (System File B-163554/MWC 97-12-16AA SLF).
(2) As a consequence of the violation referred to in Part (1) above, ` . . .
Special Equipment Operators C. E. Green,
R R
Ray, L. A. Taylor
and W. L. Mason, and Foremen B. R. Joiner, A. D. Hurst, and nine
(9) Trackman Drivers from seniority district No. 67 all be paid a total
of 4680 hours, equally divided among them at their respective rates
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Form 1 Award No. 36282
Page 2 Docket No. MW-35495
02-3-99-3-400
Parties to said dispute were given due notice of hearing thereon.
The Carrier notified the General Chairman on July 27, 1997, that it intended to
contract out "the new construction of the extension of the switching lead at Harvard Yard
in Harvard, Arkansas." It contemplated that the following work would be done by
contractors: embankment (15,932 cubic yards, compacted); install row fencing (3,900 feet);
excavation (67,575 cubic yards); clearing and grubbing (1.8 acres); subballast (4,468 cubic
yards, compacted); and drainage (install 60-inch CMP). It anticipated that the contractors
would begin this job no later than August 13,1997. Equally important, its notice called for
BMWE-represented employees to install 3,750 feet of new track including ties, ballast,
surface, and one turnout along with relocation of three existing turnouts with new switch
tie packages and installation of a concrete grade crossing.
Discussions of the proposed contracting out were held. But the Organization was
unable to persuade the Carrier to assign the other portions of the project, particularly the
"dirt work," to the Carrier's employees. A grievance followed.
This case is closely related to the dispute in Third Division Award 36280. It presents
much the same evidence with respect to essentially the same issue. The Board finds, as it
did in Third Division Award 36280, that the record fails to establish that the type of work
in question has been done exclusively by Carrier employees in the past. Such work has no
doubt been assigned to such employees on occasion, but it has also been assigned to
contractors. Given these circumstances, the Organization's claim is without merit.
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 28th day of October 2002.