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.
This claim was initially handled as two separate continuing claims on the property. One claim was filed on behalf of Group 3 Machine Operators D. E. Nygren and M. C. Lee for the work of picking up and stacking ties perfformed by outside forces beginning on May 10, 1999 and continuing from Jamestown, North Dakota, westward. The second claim was fled on behalf of Group 2 Machine Operators W. L. Appl and D. E. Anderson for the work of picking up and stacking ties performed by outside forces beginning on October 11, 1999 and continuing on the Mitchell Subdivision of the Dakota Division. Because both claims involve Form 1 Award No. 37621
identical work (picking up and stacking ties) on an "as is, where is" basis by Wood Waste Energy, Inc., the claims have been appropriately consolidated.
The Claimants hold seniority in the Roadway Equipment Subdepartment and were assigned to and working their respective positions on the dates involved in this dispute.
This case involves the Carrier's sale of scrap ties on an "as is, where is" basis. According to the record developed on the property, the Carrier entered into a contract with Wood Waste Energy, Inc. (WWE), which provided that WWE take title to scrap ties removed from the Carrier's track and dropped onto its right-ofway by the Carrier's forces. The financial arrangement between the parties provides that WWE would pay the Carrier $1.31 per net ton for the ties. In turn, the Carrier would pay WWE $14.69 per net ton for processing and disposal of the scrap ties at the WWE facility in Duluth, Minnesota. According to the Carrier, WWE has the ability and expertise to properly dispose of the ties.
The Organization contends that the Agreement was violated when the Carrier assigned outside forces (Wood Waste Energy, Inc.) to perform maintenance-of-way work (pick up and pile ties on the right-of-way). First, it claims that the Carrier did not provide adequate notice to the Organization as is required. Second, the Organization claims that it was improper for the Carrier to contract out the above-mentioned work. This is work that is properly reserved to the Organization. The Organization argues that because the Claimants were denied the right to perform the relevant work, they should be compensated for the lost work opportunity.
Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier contends that the ties were sold on an "as is, where is" basis, which historically has been allowed. Because the work was performed pursuant to a sale, there was no need to give notice to the Organization. The fact that there was a financial arrangement between the Carrier and the purchaser (WWE) does not change the basic nature of the arrangement to sell ties on an "as is, where is" basis. Form 1 Award No. 37621
After a review of the record, we find that the instant matter qualifies as an "as is, where is" sale and, therefore, is outside the purview of the Agreement. The fact that there was a reciprocal financial arrangement between the Carrier and WWE does not change the fact that this was a bona fide sale and, therefore, the Carrier was not required to provide notice to the Organization.
Based on the on-property evidence as well as the above-cited precedent, we cannot find that the sale to and removal of ties by WWE was improper. The Organization has been unable to meet its burden of proof. The claim is therefore denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
LAPCR IIEKII;Er"" LISSENT
To
_I\V'..;RD_3_i6_1 l. D0CKFT MW-36674
(Referee Bierig)
The Majority has clearly overlooked the glaring contract violation in this case and a dissent is recluircd heciiuse the reasoning of the Majority in dcn~ ing the clrim is based on false premises. First, the Majority found that the purported sales a grecrncnt between the Carrier and the Contractor created an "as is, where is" sales transaction. According to the Majority such a transaction relieved the Carrier from its obligation to issue notice of its intention to contract out the work. The General Chairman requested and received a copy of the alleged sales agreement from the Carrier. Thereafter, the General Chairman pointed out to the Carrier that the alleged sales agrecrncnt with the outside Contractor, was in fact not an "as is, where is" sale but was a contract for work or services. This is glaringly true from a perusal of the document itself. Within the alleged seles cwrcement aerc the instructions on how many used ties could be loaded per gondola car, how the ties would he situated in the gondola car, how much the Carrier would pay the contractor to pick up the ties and how much the Carrier v, ould receive after the contractor sold the ties. This certainly is not an "as is, where is" sale but clearly is a contract for work or services. It is submitted that the terms and conditions for the pick up and disposal of the scrap ties would not be significantly altered by eliminating the sentence "purchaser will pay BNSF $1.31 per net ton for all ties." and stating BNSF e\i11 pay Wood Waste Energy, Ins. $13.68 ($14.69 less the $1.31 purchase price) per net ton for processing and dispos<d of scrap ties at Wood Waste Energy, Inc.'s facility in Duluth, LAIN for the years 1999 through 2001. Clearly, the Carrier's January 20, 1999 Letter of Agreement with Wood Waste Energy, Ins. is not an "as is, where is" sale of scrap ties to Wood Waste Energy, Ins., but a contract for scrviccswith Wood Waste Energy, Ins. for pick up and disposal of the scrap tics under the Carrier's control. This is especially true when as here, the Carrier is paying to have the tics picked up and disposed of and is to receive credit from the sale of the ties.
In light of the fact that the Carrier retained the right to rcccive all credits from the sale of the tics, there can he no doubt that the scrap tics stacked by Wood Waste Energy, Ins. were for Carrier's berjcfit. Even if the agreement with Wood Naste Energy, Ins. could somehow be considered a t-<=lid s<:le contract (which w a emphatically deny), the Carrier was not relieved of its ohligtition to scrce notice prior to contracting the Scope covered \vork in this instance. The ;igrcennent bcmecn the Carrier end Wood Waste Energy, Ins. clearly revealed that the work was pcrfonned at the Carrier's rxpcnsc; the Carrier rcti;ined sufficient control over the work performed I-y the outside forces; s:nd, received benefit there from. Therefore, it is bound by the provisions of the Maintcrir<nce of Way Atreement regardless of the fact that it denies ownership of the surject property. In this insls:ncc, there is no disiutc that notice was not served, therefore, the instant ch im should have 1 een sustained. The Carrier mat ntaincd total and complete control over the removal and handling the ties. )<ihor Member's Dissent