PARTIES TO DISPUTE: (
STATEMENT OF CLAIM:
Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39963
Docket No. MW-39074
09-3-NRAB-00003-050532
The Third Division consisted of the tear members and in addition Referee
Jacalyn 1.
Zimmerman when award was rendered.
(Brotherhood of Maintenance of Way Employes Division
( IBT Rail Conference
(Union Pacific Railroad Company (former Chicago
North Western Transportation Company)
"Claim. of the System Committee of the Brotherhood. that:
(1) The Agreement was violated when the Carrier assigned outside
forces to perform Maintenance of (tray and Structures
Department work (grading, drainage, paving, lighting foundation
work, utilities work and track removal) in East Minneapolis
Yard at Minneapolis, Minnesota beginning on June 4, 2004 and
continuing instead of District 7 employes C. Reiswig, A. Stenen,
M. Mueller, J. Morgan, E. Wirtz, G. Linguist, I. Determan, A.
Steffen and R. Bushinski (System File 7WJ-7414T/1409044
CNW).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with proper advance written
notice of its intent to contract out the above-referenced work or
make a good-faith 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 (I) and/or
(2) above, Claimants C. Reiswig, A. Stenen, M. Mueller, J.
Morgan, E. Wirtz, G. Linguist, I. Determan, A. Steffen and R.
Form 1
Page 2
FINDINGS:
Award No. 39963
Docket No. MW-39074
09-3-NRAB-00003-050532
(05-3-532)
Bushinski shall now `*** be compensated at their applicable rate
of pay for an equal proportionate share of the total man/hours
expended by the contractor forces in performance of the cited
work at East Minneapolis Yard."'
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
involved herein.
Parties to said dispute were given due notice of hearing thereon.
On April 27, 2004, the Carrier served the following notice upon the
Organization:
"This is a IS-day notice of our intent to contract the following work:
dispute
Location: East n!Iinneapolis Yard, Minneapolis, MN
Specific Work: Grading, drainage, paving, lighting, foundation,
utilities and track removal for facility leased to Triple Crown for
roadrailer terminal.
Serving of this "notice" is not be construed as an indication that the
work described above necessarily falls within the "scope" of your
agreement, nor as an indication that such work is necessarily
reserved, as a matter of practice, to those employees represented by
the BMWE."
Form 1 Award No. 39963
Page 3 Docket No. MW-39074
09-3-NRAB-00003-050532
(05-3-532)
On May 4, 2009, the parties held a conference to discuss the proposed
contracting out. On May 11, 2004, the Carrier sent the Organization a letter
confirming the conference discussions. It stated, in relevant part:
"It was explained that this work involves work being performed by
an outside party who is leasing a portion of land from the Carrier.
The leasee (sic) is performing the work for their benefit and not for
the Carrier's. This work does not fall under the Scope of your
agreement.
Although a final lease has not been signed . . . I have enclosed some
preliminary information. Yon were advised that we would proceed
with the contracting of this work."
The Organization responded:
"It is the understanding of the Brotherhood that, prior to and
subsequent to the effective date of the lease agreement with Triple
Crown, all track maintenance, track relocation, track retirement
and track construction, grading and crossing work in the Carrier's
East Minneapolis Yard will continue to be performed by Carrier's
BMWE forces. Prior to the effective date of the lease agreement,
Carrier forces will continue to perform all grading and drainage
maintenance in the entire East Minneapolis Yard. Subsequent to
the effective date of the lease, Carrier forces will continue to
perform all track maintenance in the East Minneapolis Yard."
The work in question began on June 4, 2004. The Organization contends that
the lease between the Carrier and Triple Crown was not signed until almost a
month later. Thus, the Organization asserts, it was the Carrier, and not the lessee,
which contracted to have the work performed. The Organization asserts that the
work is Scope-covered, anti, in the absence of a valid lease, accrued to the
Claimants.
Form I Award No. 39963
Page 4 Docket No. MW-39074
09-3-NRAB-00003-050532
(05-3-532)
The Carrier points out that the Organization does not dispute it has no claim
to work performed on property leased to a third party, and supports its claim only
on the basis that there was no signed lease agreement at the time the work
commenced. However, the Carrier states, there was a verbal lease agreement in
effect, which was reed in written form July I, 2004. The Organization's
contention as to the validity of the lease is a matter of contract law, the Carrier
states, and is outside this Board's jurisdiction. Therefore, it concludes, the
Organization has not met its burden of proof and the claim should be denied.
As the Carrier asserts, the Organization does not dispute that it has no claim
to work performed on property leased to a third party. The notice sent by the
Carrier of the proposed subcontracting specifically stated that the work was to be
performed on property lees to Triple Crown, demonstrating that some agreement
to lease the property had already been reached. The Organization asserts that until
a signed agreement was in effect there was no valid lease, so the work accrued to the
Claimants. As the Carrier asserts, however, the issue of whether a verbal
agreement constituted a valid, binding contract is governed by the law of contract
interpretation and is beyond the Board's jurisdiction. Thus, the Organization failed
to meet its burden of proof.
AWARD
Claim denied.
ORDER
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 30th day of September 2009.