The Third Division consisted of the tear members and in addition Referee lacalyn J. Zimmerman when award was rendered.
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.
The facts of this case are not in dispute. On April 30, 2004, the Carrier entered into an Industry Track Agreement with Heartland Co-Op (Industry). The contract provided that the Industry desired the construction of a 700 foot spur track and a 3,058 foot extension to Track 102 between Mile Post 66.4 and Mile Post 68.6 on the Trenton Subdivision near Avon, Iowa, and would perform that work at its own expense. The contract further required the Carrier to replace an existing timber bridge with three-plate pipes as a culvert, for which the Industry would reimburse the Carrier. The contract also included a provision that the Carrier reserved the right to change construction costs and track design if the Carrier was unable to begin construction within six months due to delay by the Industry.
On July 13, 2004, the Carrier served notice upon the Organization of its intent to contract for the following work at Bridge 67.70 Trenton Subdivision at Avon, Iowa: "Providing labor, materials, supplies, and equipment necessary to install 3-108"x52' Structural Plate Pipe with a headwall under the existing TST Form 1 Award No. 39964
bridge." The matter was discussed in conference on July 20, 2004. The contractor commenced work on the project in September 2004.
The Organization contends that the work in question has historically been performed by Carrier forces, is clearly encompassed within the scope of the Agreement, and was thus reserved to the Claimants. The Organization first states that the Carrier violated the contractual advance notice requirement applicable to scope-covered work, because the notice was not provided until after the Carrier entered into the Industry Agreement. Moreover, the Organization asserts that there was no loss of Carrier control over the work at issue and the Carrier was not free to contract with outside parties to constructively circumvent the parties' Agreement.
The Carrier notes that it substantiated that the work in question was performed pursuant to the Industry Track Agreement, for the benefit of the Inch and at its cost- Although the Carrier states that advance notice was not required in such circumstances, it points out that it did provide a precautionary notice, and discussed the matter in conference, months before the work commenced. Board precedent is clear, the Carrier concludes, that under circumstances such as those present herein, the work is not scope-covered and, accordingly, the claim should be denied.
Well-established precedent establishes that work performed pursuant to an agreement like the Industry Track Agreement herein, at the expense of others and not for the Carrier's benefit, falls outside the scope of the Agreement. See, for example, Third Division Award 37144 and cases cited therein, as well as 29601. The Organization asserts that the Carrier maintained complete control over the work, but the record does not prove that such is the case. On the contrary, it shows only that the Carrier agreed to perform the work at the Industry's expense, and that the Carrier retained the right to change overall construction costs and design should the Industry unduly delay the project's commencement. This is not sufficient to meet the Organization's burden of proof. Form 1 Award No. 39964
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.