Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38206
Docket No. MW-37999
07-3-03-3-436
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:
(The Belt Railway Company of Chicago
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier utilized outside
forces to construct track on its property between Cicero
Avenue and Pulaski Avenue, south of the New Tail Track from
May 6 through September 20, 2002 (System File BRC-6787T).
(2) The Agreement was further violated when the Carrier failed to
give the General Chairman proper advance notice in writing of
its intention to contract out the work in question in accordance
with Rule 4.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, the Claimants (all BMWE employes on the
Belt Railway Company) shall each be compensated at their
respective rates of pay for an equal proportionate share of the
nine thousand eight hundred thirty-two (9,832) man-hours
expended by the outside forces in the performance of the
aforesaid work from May 6 through September 20, 2002."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 38206
Page 2 Docket No. MW-37999
07-3-03-3-436
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.
On April 15, 2002, the Carrier sent the Organization the following e-mail
nntifi~af-enn
"Sorry for the late notification, but I would also like to talk this
afternoon about a project scheduled to begin early next month. We
have entered into a long term lease (through 2022) with CSX
Intermodal for about 12 acres of land east of Cicero Bridge, on the
south side of our property, on which CSXI intends to construct a
Staging Yard. It is intended to house about six tracks of 4000-5000
foot length and will feed their Bedford Park Intermodal Facility.
BRC serves a couple of industries within this acreage, and we will
retain
the right to nnprutp nvnr
anti maintain mennn+ R. rnr,oi,- +ho
industry turnouts therein.
Given the long term of the lease arrangement, and BRC's lack of
control over w,e construction, i was unsure as to whether notice
would be required. However, I think it better that we discuss it.
Thanks."
The above referenced claim was initially filed on June 10, 2002. The claim
stated in pertinent part:
"This claim is being
filed in hphnlf of all mpmhprc of
+hn
Brotherhood of Maintenance of Way Employes employed on the
Belt Railway Company of Chicago, due to the Carrier's violation of
Rule 4 and Agreement dated August 24, 1998.Contractors are
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Page 3 Docket No. MW-37999
07-3-03-3-436
being utilized to construct a Staging Yard between Cicero Avenue
and Pulaski Avenue, south of the New Tail Track .
. . . Track construction is work belon2inL to and historically
performed by the Brotherhood of Maintenance of Way Employees .
. . . Rule 4 states in part: `In the event a carrier plans to contract out
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carrier shall notify the General Chairman in writing as far in
advance of the date of the contracting transaction as is practicable
and in any event not less than 15 days prior thereto.' The Carrier
has furnished
no
such notice involving the construction of a Staging
Yard between Cicero and Pulaski Avenues.
The Agreement of August 24, 1998 states in part: `It is understood
before any additional contractors or foreign railroad gangs are to be
utilized or any other work not identified or contemplated can be
performed, an additional letter of understanding detailing the work
will he rennirerl_'
There has been no Letter of Understanding allowing contractors to
perform the above-mentioned work. This is work reserved for and
nrswncany
performed by the Brotherhood of Maintenance of way
Employes.
It is the claim of the Brotherhood that each member of the
Brotherhood of Maintenance of Way Employes employed on the
BRC be compensated, an equal and proportionate share, of all hours
worked by the contractors until they are removed from Carrier's
property ...."
The Carrier responded to the claim on August 6, 2002. In its letter of denial,
it contended that there was no advance notice because the "property or area in
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qucadavu vvaa acaJCU
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with
CJhl.-'
The Carrier
added, "since this work is being done on long-term leased property, I see no valid
Form 1 Award No. 38206
Page 4 Docket No. MW-37999
07-3-03-3-436
claim as to outside contractors (not under BRC control or contract) performing
listed work."
.*_e O
rne
vrgaciizauon appealed the Carrier's denial by letter of September 24,
2002. It contended that because the Carrier owned the land, retained the right to
use the tracks on the land once CSXI had built them, would profit from the leasing
transaction with CSXI, and then would take possession of all tracks and
appurtenances on the leased land once the lease expired, the Carrier was bound to
administer the land -leased or not - in accordance with the BRC/BMWE
Agreement. The Organization also contended that the "obvious purpose was to
avoid [the
Carrier'sl obligation" nndw
thp Partfaa'
Ao,-RRmont %nd that tha ettmR
y a__ ____-__ ____ _~_____
__a__________ ____ .,___., _____....,
result could have been obtained by building the new track with BMWE-represented
forces and then leasing the property to CSXL
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The
vrgarnza~wu
N
appeal was uemeu
by
letter of November 19, 2002. The
Carrier reiterated its position that there was no violation of Rule 4. Further, it
addressed the Organization's allegations that it had control of the land, leased or
not, and should have used Carrier forces and equipment to perform the
construction work. Specifcally, the Carrier stated:
".
. . The Belt Railway Company of Chicago had no right to perform
this work. The land was leased and under the exclusive control of
CSXI: Without prejudice to the Carrier's argument that BMWE
forces had no right to the work, the Carrier had neither the forces
nor the machinery to perform this project."
The Carrier also characterized the Organization's allegation that the lease
was simply a vehicle for avoiding its responsibilities under the BRC/BMWE
Agreement as "absolutely untrue."
The claim was subsequently progressed according to the relevant contractual
provisions of the Agreement, including conference on the property on February 6,
2003.
This is certainly not a case of first impression. The matter of one Carrier
leasing property - with or without retention of control of that property - to another
T7-- t _ _ _ _ _ _ _
1'Ullit j
Award No. 38206
Page 5 Docket No. MW-37999
07-3-03-3-436
Carrier or non-rail third party has been considered in numerous Awards on this
and other Boards, with varying results, depending upon the circumstances and the
ultimate effect of the leasing arrangements upon the primary Carrier's operations
and "bottom line." (See. for eX_amniP_
Third Division Awarrle 379,11 and
IC"f1'9.
Public Law Board No. 4768, Award 1).
As noted above, the Carrier notified the Organization on April 15, 2002 that
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allow the latter to construct a Staging Yard.
There is no indication that such notice was simply a confirmation of a "fait
accompli" as the Organization alleged in its correspondence on the property.
Rather, although the lease had been signed, there is no indication that the work on
the property had begun. On the contrary, the notification specifically states that the
project at issue "is scheduled to begin early next month."
In correspondence with the Carrier on February
fi_ 2003_ the
Oraani7atinn
contended that an e-mail notification was not sufficient notification under the
meaning of Rule 4. However, in its response, the Carrier asserted without
contradiction that, while some divisions of the Carrier might serve such notice by
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had,
on several occasions
in the past, notified the Organization regarding contracting out via e-mail, faxes and
telephone calls, without protest from the Organization as to method of notification.
With respect to the portion of the claim regarding whether the work at issue
should have been performed by Carrier employees, that matter is essentially moot.
The Organization offered no evidence other than assertions that the Carrier was
performing the construction. On the contrary, all construction seems to have
been
carried out under the direction of CSXL The only remaining BRC work on that
property appears to be with regard to operating over and maintaining, inspecting
and repairing industry turnouts for the "couple of BRC customers within the
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BRC/BMWE Agreement provisions. The Organization's reliance on the fact that
both BRC and CSXI benefit financially from the leasing arrangement - the basis
upon which any leasing arrangement presumably is undertaken - that fact alone is
insufficient to prove continued control of the property under lease by the Lessor
rather than by the Lessee. (See, Third Division Awards 37165, 36936, and 36017).
Form 1 Award No. 38206
Page 6 Docket No. MW-37999
07-3-03-3-436
In light of the foregoing, the Board has no choice but to deny the claim in its
entirety.
AWARD
Claim denied.
ORDER
Thsa
J2novsk oftnv nnncihn,-n+Gn*a of fU- .7: M L.i LC~ i -i-- L I--. --a-_
aarav ar~aau, uaua.a wuoau au avli vi ~ul. u1JjlUGG 1VGl(1.111~ QVVVV, 11c1GVY VIUCIJ
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJ USTMENT BOARD
By Order off Third Division
Dated at Chicago, Illinois, this 18th day of May 2007.