Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37023
Docket No. MW-36508
04-3-01-3-5
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (L. B. Foster Rail Relay Division and Hebei
Construction) to perform routine Maintenance of Way right of
way cleaning work (general cleanup work related to rail and
scrap metal left by Steel Curve Gang 8514 after track renewal
project) starting at Huntington, Oregon at Mile Post 387.95 on
the Huntington Subdivision beginning August 16, 1999 and
continuing (System File J-9952-255/1212996).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Cbaii-man with proper advance written
notice of its intention to contract out said work and failed to
make a good-faith attempt to reach an understanding
concerning said contracting as required by Rule 52(a).
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, System Track Foreman P. M. Piggott, System
Roadway Equipment Operators K. S. Robins, S. W. Pfel,
System Track Laborers B. M. Blaylock and T. L. Zbylut shall
now each be compensated `*** at his applicable rate a
proportionate share of the total hours, both straight and
overtime hours worked by the contractor doing the work
Form 1 Award No. 37023
Page 2 Docket No. MW-36508
04-3-01-3-5
claimed as compensation for loss of work opportunity suffered
starting on August 16, 1999, continuing until such time as the
contractor employes are removed from the property as the
work claim is considered continuous. Additionally, in an effort
to make Claimants whole for all losses suffered, we are also
claiming that the Carrier must treat Claimants as employes
who rendered service on the days claimed qualifying them for
vacation credit days, railroad retirement credits, insurance
coverage and any and all other benefits entitlement accrued as
if they performed the work claimed."'
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.
The record establishes that the Carrier sent a notice dated February 9, 1999
to the General Chairman that read, in pertinent part, as follows:
"This is a 15-day notice of our intent to contract the following work:
Location: 1999 Scheduled Locations of Gangs Series 8500, 9100,
and 9000.
Form 1 Award No. 37023
Page 3 Docket No. MW-36508
04-3-01-3-5
Specific Work: Provide labor, materials, equipment, and supervision
for purchase and removal of rail & otm "as is where is" behind
system rail gangs during annual Track Maintenance Program."
The parties met to conference the notice on February 9, 1999, but no
agreement was reached. Nevertheless, the Carrier entered into a contract with L. B.
Foster Company on March 1, 1999 which provided for the purchase and removal of
scrap on an "as is where is" basis. A copy of the contract was provided to the
Organization as part of the on-property record. The Carrier also provided a copy
of the Sale Order related to the contract. The Sale Order also notes the "as is where
is" basis of the sale.
It is well settled that genuine "as is where is" sales of Carrier property do not
constitute impermissible contracting of scope covered work under the Rule
applicable here. As such, notice is not required. See, for example, Third Division
Award 35772 and Awards cited therein.
The record herein convincingly establishes that the instant dispute involves a
genuine "as is where is" sale and that the Carrier provided the requisite
documentation, on the property, to perfect its position. Third Division Award 36723
denied a nearly identical claim that differed only as to date and location arising out
of the same February 9, 1999 notice of intent to contract. We see no reason to
depart from its rationale or the long-established line of authority regarding "as is
where is" sales. Accordingly, we deny the instant claim.
Although the Organization raised a contention in its Submission that some of
the scrap material was retained by the Carrier, careful review of the record shows
that this contention was not raised while the claim was being handled on the
property. Being new before us, we may not consider it.
AWARD
Claim denied.
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ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 18th day of May 2004.