Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38202
Docket No. MW-37720
07-3-03-3-76
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 (Pollard Excavating) to perform Maintenance of Way
work (operate dozer and roller) in, around and between the
tracks at Kenwood Yard starting on or about November 26,
2001 and ending on or about "December 13, 2001 instead of
System Equipment Operator D. Jordan (Carrier's File 8-00229
DHR).
(2) The Agreement was further violated when the Carrier failed to
comply with the 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
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, System Equipment Operator D. Jordan shall
now be compensated for eight (8) hours per day at this
respective straight time rate of pay and for all overtime hours
at his respective time and one-half rate of pay for each date
that the outside forces performed the aforesaid work beginning
on or about November 26, 2001 and ending on or about
December 13, 2001."
Form 1 Award No. 3$202
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2 Docket No. rvrW-37720
07-3-03-3-76
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.
By letter of October 29, 2001 the Carrier notified the Organization of its
intention to en_gaL_e a contractor "to assist MOW forces at Kenwond
lntermndnl
Area." The Organization responded on November 6, 2001. In that letter, the
Organization stated its position that the Carrier had employees in the Track
Department and System Equipment Operators who were capable of performing the
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2001. In that letter, it stated that while BMWE-represented employees would "do
all track work," it would "not have equipment nor staff to do work beyond the track
work."
The Organization filed the instant claim on December 28, 2001. In that claim
it alleged that the Carrier had violated various Articles in the Agreement when it
contracted out work to be performed in Kenwood Yard in Albanv. New York.
Specifically, the Organization objected to the use of an outside contractor to do
bulldozer and steamroller work, which it maintained was normally performed by
System Equipment Operators. In particular, the Organization contended that the
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Agreement. Appendix H reads, in pertinent part, as follows:
"The carriers assure [the BMWEj that they will assert good-faith
efforts to reduce the incidence of subcontracting and increase the
use of their maintenance of way forces to the extent practicable,
including the procurement of rental equipment and operation
thereof by carrier employees."
Form 1 Award No. 38202
Page 3 Docket
No. MW-.37720
07-3-03-3-76
The Carrier denied the claim on February 25, 2002. The Carrier contended
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BMWE had, in fact, done all the track work in the project at issue and that the
contractor had merely been assisting in the work in which BMWE-represented
employees were involved. The Carrier also pointed out that the Claimant had been
working during the period at issue and thus suffered no financial loss as a result of
the project.
In its appeal the Organization restated its position that the Carrier had
violated the Agreement, and noted particularly an attached statement to its claim in
which the Claimant pointed out that he was not only capable of operating the
machines used by the contractor at Kenwood, but that he was the Operator that did
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originally built. That appeal was subsequently denied and the claim was processed
in the usual manner including conference on the property.
There is no dispute on this record that the Claimant was fully qualified as a
System Equipment Operator and was capable of operating both a bulldozer and a
steamroller. Further, the Carrier acknowledges that the Claimant was, in fact,
involved in the original building of the Kenwood Yard. The Organization argues
that the Carrier should have rescheduled the Claimant to perform the work and/or
permitted him to perform the work during regular and weekend overtime hours.
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work at issue. Moreover, given the history of the construction of the Kenwood
Yard, it is also clear that the work at issue in this claim is generally performed by
BMWE-represented employees. While the Carrier asserted that it was not possible
to assign the Claimant the work at issue, ii has provided only that assertion and has
not successfully countered the Organization's position that the specific work of
operating a bulldozer and steamroller should have been assigned to the Claimant
under the provisions of Article 11.8 of the Agreement. That Article states:
"Employees will, if qualified and available, be given preference for
overtime work, including calls, on work ordinarily and customarily
nerformed by them
dnrino the rnurw of their wnrk
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the order of their seniority."
Form 1 Award No. 38202
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Based upon the foregoing, the Board finds that the Parties should make a
joint review of the Carrier's records and determine what part of the work
performed by the contractor on the dates named in the above claim involved the
work that should have been allocated to the Claimant, i.e., bulldozer and
steamroller work. That review should include the Claimant's availahility
for
straight time or overtime. Once the Claimant's available hours are determined, he
should be reimbursed to the extent of his determined availability, at the straight
and/or overtime rate as appropriate.
AWARD
Claim sustained in accordance with the Findings.
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
tranemittnrl to thn »ortinc
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 18th day of May 2007.