The Third Division consisted of the regular members and in addition Referee Brian Clauss 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.
This matter involves a contractor's performance of culvert boring and installation on an overpass project in the area of Caledonia, Wisconsin. The Carrier entered into a Public Highway Underpass Agreement with the Town of Caledonia, Wisconsin, and a contruction contractor for the Town, "ERS." The Organization maintains that the boring work on the project is covered by the Scope Rule and is, therefore, reserved to BMWE-represented employees. The Organization asserts that the Carrier is required to provide a 15-day notice of subcontracting. The Carrier did not provide notice of this subcontracting. This failure to provide notice, standing alone, is sufficient to sustain the claim. Further, the Carrier's initial defense of exclusivity is invalid in the instant situation where no notice of subcontracting has been provided to the Organization. Moreover, the defense of exclusivity is not a valid defense in subcontracting matters. Further, the Organization claims that, although the Carrier argues that the underpass was not constructed by the Town of Caledonia, the contract between the Carrier and the Town of Caledonia indicates that the Carrier will be performing the work. As to the remedy, the Organization argues that a monetary remedy is appropriate because of the loss of work opportunity. Form 1 Page 3
In regards to your statement `the Carrier is the one who arranges their work forces to complete various projects,' as referenced above, the work in question was not a part of the Carrier's normal operations. Further, this work does not fall under the scope of your agreement as you claim since it is not under the control of the Carrier.
In both your initial claim and appeal correspondence, you alleged that the Carrier contracted out work involving boring and installing culverts, when in fact, the work was part of a public highway underpass crossing project at the request of the Town. To further complicate the matter, you are alleging that such work was performed at an excessive amount of hours without any supporting documentation."
operate, maintain, and repair the permanent and temporary roadways, and drainage structures constructed as part of the Project within the Crossing Area subject to the UP easements.
2.2 ERS. Union Pacific hereby grants to ERS the right to construct the temporary road, permanent road, railroad bridge structure and drainage structures required for the Project with the Crossing Area and subject to the UP Easements.
11.1 Work by ERS. ERS, in substantial accordance with the Plans and Specifications will provide, through its Contractors, all the labor, materials, and equipment required to perform and complete the project . . . .
11.2 Work by Union Pacific. Union Pacific shall furnish or cause to be furnished, at the expense of ERS and in accordance with the Plans and Specifications, all labor, material and equipment required to perform and complete:
11.2.1 All temporary and permanent alterations or relocations of mainline, passing track and shoofly track, north and south switch connections for shoofly, railway communication and signal wire lines, signals, and railroad appurtenances and supporting electric power lines Form 1 Award No. 40413
The Board carefully reviewed the record evidence. In Third Division Awards 37143 and 37144, involving the instant parties, the Board found the determinative factor to be whether the disputed work was contracted out under the Carrier's control. Relevant here is the following from Award 37143:
In the instant case, an examination of the Public Highway Underpass Agreement shows that the Carrier entered into an agreement with the Town and ERS. ERS was to construct the underpass for the Town and the Town would then maintain it. According to section 11.2.1 and other sections of the Public Highway Underpass Agreement, the Carrier was going to be responsible for the track work and ERS was to construct the underpass and the temporary and permanent roadways needed for the project, as well as the drainage structures for the project. The Underpass Project was under the control of the Town and ERS. It was not a Carrier project.
The Public Highway Underpass Agreement reveals that the work at issue fell within ERS's area of control and responsibility. It indicates that, other than the Form 1 Award No. 40413
track work, the Carrier retained no control over the Public Highway Underpass Project. The project was not exclusively for the benefit of the Carrier - rather, it benefitted the Town. Moreover, the Carrier did not pay for the project - it was paid for by the Town. Accordingly, the instant claim lacks merit and is denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.