Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38150
Docket No. MW-37500
07-3-02-3-584
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CP Rail System (former Delaware and Hudson
( 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 (blacktop/asphalt
work) at the Saratoga Engine Shop in the Saratoga Yard on
July 16, 2001, instead of furloughed System Equipment
Operator K. Sweatt and furloughed Trackmen A. Martelle, B.
Kent, M. Gorski and E. Pratt (Carrier's File 8-00209 DHR).
(2) The Agreement was further violated when the Carrier failed to
comply with the advance notice requirements regarding its
intent to contract out the aforesaid work or make a good-faith
effort to reduce the incidence of subcontracting and increase
the use of its Maintenance of Way forces as required by Rule 1
and Appendix H.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimants K. Sweatt, A. Martelle, B. Kent,
M. Gorski and E. Pratt shall now be compensated for eight (8)
hours' pay at their respective straight time rates of pay."
Fnrm 1
Award No. 38150
Page 2 Docket No. MW-37500
07-3-02-3-584
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
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This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
On February 2, 2001, the Carrier sent the Organization's General Chairman
a memorandum notifying him that "should the roster of available employees be
exhausted . . . rail contractors [might] be sought to assist in the project work
normally and customarily performed by BMWE employees." Among the projects
tided
in that memorandum were "Asnhalting Road Crossinus (asphalt and ureul."
The instant claim was originally filed on July 28, 2001. The Organization
alleged that the Carrier violated the Scope Rule of the Agreement when it assigned
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Yard in Saratoga, New York.
In its October 3, 2001 denial of the claim, the Carrier contended that it had,
in fact, notified the Organization of its intention contract out the work at issue, and
it had, therefore, complied with the Parties' Agreement. The Carrier's denial was
appealed on November 29, 2001. In that letter, the Organization noted:
"The Organization wishes to reiterate that Asphalting Road
Crossings has been work done by BMWE people in the past.
However, in this Claim, issue is taken against the Contractor for
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Engine House. These areas were walkways and muddy areas which
the Carrier wanted to repair. The Contracting Out reference listed
Form 1 Award No. 38150
Page 3 Docket No. MW-37500
07-3-02-3-584
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Contracting Transaction. The nearest Road Crossing is over one
quarter (1/4) of a mile away."
In its December 20, 2001 denial of the appeal, the Carrier conceded that the
February 2, 2001 notice did not cover the work at issue in the Organization's July
28, 2001 claim. The Carrier went on to state:
"However . . . the blacktopping work in question is not blacktopping
work that is covered under any rule of the collective agreement, nor
its it covered under any past practice, and accordingly, no
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The blacktopping around a building is not work that is ordinarily
and customarily performed by D&HBMWE employees."
As with similar cases, the burden of persuasion in this case resides with the
Organization. It made a credible argument that, notwithstanding the Carrier's
original response to the claim, the February 2, 2001 notice to the General Chairman
did not cover the work at issue here. Furthermore, the Carrier conceded that fact.
However, the Carrier contended that the work at issue is not, nor has it ever been
work typically performed by BMWE-represented employees. A thorough review of
the
record before the Rnnrd does not
reveal any evidence presented hn the
Organization to contradict the Carrier's affirmative defense on this point.
Accordingly, we find that the Organization has not met its burden of persuasion,
and the claim must be denied.
AWARD
Claim denied.
Form 1 Award No. 38150
Page 4 Docket No. MW-37500
07-3-02-3-584
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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
Bv Order of Third Division
Dated at Chicago, Illinois, this 23rd day of April 200'7.