Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39325
Docket No. MW-37965
08-3-NRAB-00003-030368
(03-3-368)
The Third Division consisted of the regular members and in addition Referee
Robert E. Peterson when award was rendered.
(Brotherhood of Maintenance of Way Employes
_PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Chicago &
( North Western Transportation Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Stralow's Morrison Blacktop) to perform Maintenance of
Way and Structures Department work (haul rubber material
and breakup concrete header) at Route 9 crossing, Mile Post 86.7
on the Peoria Subdivision on May 13 and 14, 2002 instead of Mr.
R. Boncouri. (System File 3KB-6786711327232 CNW)
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with proper written notice of its
intent to contract out the above-referenced work or make a goodfaith attempt to reach an understanding concerning such
contracting as required by Rule 1(b).
(3) As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimant R. Boncouri shall now be compensated for
sixteen (16) hours' pay at his respective time and one-half rate of
pay."
Form 1 Award No. 39325
Page 2 Docket No. MW-37965
08-3-NRAB-00003-030368
(03-3-368)
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 Board is satisfied in overall study of the record that, as the Carrier states,
the claim fails on fundamental burden of proof grounds in that it arises from a matter
that involves not the Carrier, but the State of Illinois having contracted with Stralow's
Morrison Blacktop to replace the asphalt of a Route 9 highway crossing for 30 feet on
either side of the Carrier's tracks crossing Route 9.
Despite vigorous argument, we are not persuaded that the record supports the
existence of any Rule or Agreement that requires the Carrier to use its Maintenance of
Way forces to perform work that is incidental to a third party project, or, as here, a
concrete header that was and is said to be property of the State of Illinois.
Under the circumstances of record, the Board finds that the disputed work was
not under the control of the Carrier. We will, therefore, hold that there was no
violation of Carrier Agreements with the Organization.
AWARD
Claim denied.
Form I Award No. 39325
Page 3 Docket No. MW-37965
08-3-NRAB-00003-030368
(03-3-368)
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
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of September 2008.