Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36930
Docket No. SG-36221
04-3-00-3428
The Third Division consisted of the regular members and in addition Referee Dana
E. Eischen when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Paducah & Louisville Railway, Inc.
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Paducah & Louisville Railway (P&L):
Claim on behalf of L. R. Keeling for payment of 96 hours at the time
and one-half rate. Account Carrier violated the current Signalmen's
Agreement, particularly Appendix 1 and the Letter of Understanding
dated April 23, 1999, when beginning on June 14 through June 30,
1999 Carrier permitted an outside contractor employee to perform
work covered under the Signalmen's Agreement and deprived the
Claimant of the opportunity to perform this work. BRS File Case No.
11405-P&L."
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. 36930
Page 2 Docket No. SG-36221
04-3-00-3-428
As in companion cases filed at or about the same time, the basic facts in this case
are not in dispute. By letter dated July 21, 1999, the Organization submitted a claim
seeking a total of 96 hours at the overtime rate of pay ($2,862.72) on behalf of Signal
Inspector L. R Keeling contending that the Carrier violated Appendix 1 of the parties'
Agreement and a related Letter of Understanding when ". . . the Carrier allowed
employees of Interrail Signal Engineering, Inc. and Mr. Mike Hudson to check out and
cut over Ponds and Dawson CTC Control Points when it was agreed the only work this
contractor would do were six highway grade crossings." According to the claim letter,
the violations occurred on June 14 to 18 and from June 29 to 30, 1999.
The controlling Agreement language is found in Appendix 1 of the Scope Rule
and a Letter of Understanding dated April 23, 1999, reading in pertinent part,
respectively, as follows:
"Appendix 1
This agreement governs the rates of pay, hours of service, and working
conditions of all employees in the Signal Department (except
supervisory forces above the rank of inspector, clerical forces and
engineering forces) performing work generally recognized as signal
work, which work shall include the construction, installation, repair,
dismantling, inspection, testing and maintenance, either in signal shops
or in the field, of the following:
(a) All signals and signaling systems, traffic and C.T.C.
control systems; interlocking plants and interlocking
systems; train stop and train control equipment and devices,
except that on rolling stock; car retarders and car retarder
systems; highway crossing warning devices and their
appurtenances; low voltage electric switch lamps; metal
train order signals; spring switch mechanisms, except when
sent to reclamation shops for renewal and scrap; trackside
track occupancy indicators; bonding of track pertaining to
the systems and devices herein and bonding for static
protection (excluding the removal of bonds when jointed rail
is being replaced by welded rail.)
Form 1 Award No. 36930
Page 3 Docket No. SG-36221
04-3-00-3-428
Letter of Understanding. April 23. 1999
This will serve to confirm the mutual understanding that the
Brotherhood of Railroad Signalmen, representing the Paducah &
Louisville Signal Department Employees, will allow the Paducah &
Louisville Railway, Inc. of Paducah, Kentucky to utilize an outside
Contractor (Outside vendor) for a limited time and specified purpose.
Such contractor will be utilized only when BRS forces are fully staffed
on the Paducah & Louisville (no less than six employees). It is agreed
that an outside contractor may perform work in connection with the
installation of Highway-rail Grade Crossing Warning Devices at the
following location and for the period specified herein:
(A) During the month April 1999 and thereafter for a
period not to exceed one year the BRS plans to install
six (6) Highway-rail Grade Crossing Warning
Devices at:
1. New Bypass, Highway 121, Mayfield, KY.
2. Rod Roy Road, MP 106, near Beaver Dam,
KY.
3. Mount Pleasant Road near Beaver Dam, KY.
4. Fourth Street, West Point, KY.
5. Bernhiem Lane, Louisville, KY.
6. Wathem Lane, Louisville, KY.
It is understood that the Contractor will be permitted to perform only
the work directly associated with the installation of the Highway-rail
Grade Crossing Warning Devices at the six locations listed above.
Further, the parties agree these locations will be the only location that
the Contractor will be permitted to [do] signal work."
In its initial denial and throughout handling on the property, the Carrier merely
reiterated the facts set forth in the claim letter but provided no reason at all for denying
this claim; but merely asserting, "there is no basis for this claim." [Timeliness defenses
interposed by the Carrier in the mid-level appeal denial were met with an assertion by
the Organization that the Carrier had granted a time extension. Thereafter, the
procedural objection apparently was abandoned in the handling before the Board].
Form 1 Award No. 36930
Page 4 Docket No. SG-36221
04-3-00-3-428
In its written Submission to the Board, the Carrier contended for the first time
in the handling of the case that Mr. Mike Hudson Interrail Signal Engineering, Inc. was
also on site to provide technical support, due to the fact that his company designed and
provided all blueprints for this project. Even if, arguendo. this might have constituted
a valid defense to the Organization's prima facie showing that the Carrier violated the
cited Agreement provisions, we may not consider evidence and arguments advanced de
novo at the Board level. For reasons set forth more fully in Third Division Award
36929, this claim is sustained.
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 22nd day of March 2004.