Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40817
Docket No. MW-40823
10-3-NRAB-00003-090075

The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.

(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Chicago &
( North Western Transportation Company)

STATEMENT OF CLAIM:





Form 1 Award No. 40817
Page 2 Docket No. MW-40823
10-3-NRAB-00003-090075

FINDINGS:

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 portion of Scope Rule 1(B) that is pertinent to the instant dispute reads as follows:



It was effectively undisputed in the record that the fencing in question was installed on property that was leased from the Carrier by the local municipality. The local municipality hired the contractor to install the fencing for its own purposes. Moreover, the Carrier does not own or have responsibility to maintain the fencing.


Given the text of the Scope Rule excerpted above, we must find that the fencing was not a structure or other facility used in the operation of the Carrier in the performance of common carrier service on the operating property. Accordingly, the record does not establish that the fencing work fell within the scope

Form I Award No. 40817
Page 3 Docket No. MW-40823
10-3-NRAB-00003-090075

of the Agreement. As a result, the Carrier did not have any obligation to provide notice concerning the fencing to the General Chairman.







This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.


                    By Order of Third Division


Dated at Chicago, Illinois, this 15th day of December 2010.

LABOR MEMBER'S DISSENT

TO

AWARD 40817. Docket MW-40823

(Referee Wallin)


Tlhis dissent is being submitted because of the Majority's unreasoned and factually incorrect finding that:


      "It was effectively undisputed in the record that the fencing in question was installed on property that was leased from the Carrier by the local municipality.


The facts are that the Organization filed a claim on August 3, 2007 citing the Carrier's failure to assign Maintenance of Way employes to scope covered fence work and for the Carrier's failure to provide advance notice in connection therewith. Additionally, the claim clearly asserted:


      "... Claimants have incurred a loss of work opportunity as a direct result of the Carrier assigning outside forces of Midwest Fence Company to perform the work of fence installation on Carrier Progertv beginning at MP 33.1 on the Kenosha Subdivision near North Chicago. ***" (Emphasis added) (Employes' Exhibit «A-fir)


The Carrier denied the claim in a letter dated September 27, 2007 by contending it had a right to subcontract this type of work. In this connection the Carrier denial in went part stated:


      "... the Carrier has customarily and traditionally utilized contractor forces to perform the type of work disputed in this case. * * *" (Employes' Exhibit "A-2")


The Carrier's first level denial answered the claim based upon an allegation that it had a right to subcontract this type of work. This was a clear implication that the Carrier contracted out the subject work. Furthermore, nowhere in the Carrier's first level denial did it imply that the fence work was allegedly performed on proms leased to a third party . However, nearly six (6) months after the claim, by letter dated January 26, 2008, the Carrier denied the Organization's apps by parting that the land on which the fence was constructed was leased to the "local municipality".


Putting aside the obvious fact that the Carrier's defense on appeal was inapposite to its defense of the initial claim, the very next step of the grievance process was the March 19, 2008 claim conference wherein the Organization maintained that: (1) the fence work was performed on the Carrier's right of way; (2) the Carrier's lease defense was an allegation; and (3) that the Carrier did not produce a copy of the alleged lease to support this allegation. The Organization's post claims conference letter memorialized the March 19, 2008 claims conference and, in pertinent part, read:

Labor Member's Dissent
Award 40$17
Page Two

"In conference the Brotherhood cited thrree points supporting our claim:

    3: The fence construction in this dispute was performed by outside contractor forces on Carrier's rig t~of wav. Carrier has alleged the properly involved is leased to the local city. Carrier has failed to nmduce a copy of the allegA lease to sugport this allegation." (Emphasis added) (Employes' Exhibit "A-5")


Contrary to the Majority's finding on the key issue in this case, it was not undisputed in record that the subject work was performed on property leased to the local municipality. In.


fact, precisely the opposite is true - - the Organization not only dims this fact, but expressly requested that the Carrier provide a copy of the lease to support its afrmative defense. The Carrier's failure to produce a copy of the purported lease should have resulted in a sustaining award in accordance with well-established went, including Third Division Awards 20895, 20945 and 21079 on this property, all of which were presented to the Neutral member.


It is transparently clear that the Majority's findings on the key factual issue in this case was not simply wrong, but ugly and obviously wrong. While the fundamental fallacy of this award is bound to the facts of this case, that does not mean that the error was insignificant. To the contrary, decisions like this undermine the confidence of the employes that they can get a fair hearing on their disputes and shakes the very foundation of the story dispute resolution process.


Therefore, I must emphatically and vigorously dissent.

Respec betted,

T' othy ~W ~~ ke
    LM

abor M