"CORRECTED"

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40859
Docket No. MW-41308
11-3 NRAB-00003-100176

The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.

(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE:
(Union Pacific Railroad Company

STATEMENT OF CLAIM:





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Form 1 Award No. 40859
Page 2 Docket No. MW-41308
11-31VRAB-00003-100176
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.




This case raises the same issues concerning the Carrier's contracting of nonemergency snow removal work with sustaining Awards issued by the Board in Third Division Awards 40857 and 40858. As in those Awards, the record in this case also does not demonstrate the existence of a "mixed practice" where the Carrier contracted non-emergency snow removal work. For the same reasons discussed in those Awards, this claim also has merit.


There was a dispute on the property concerning whether the work was performed by the outside forces on the days set forth in the claim. In its March 17, 2009 letter, the Carrier initially took the position that contracted forces were not used on the dates asserted by the Organization. However, in its April 30, 2009, letter, the Organization took the position that "[tlhe dates and hours the contractor performed the work grieved herein were documented through eye witness accounts of BMWED M/W employees who recognized this work as a violation of our Collective Bargaining Agreement . . . [and w]e have no reason to doubt that the work took place as outlined in the claim correspondence." The Organization also produced a statement from an employee asserting that he was taken off equipment and the contractor performed the work and that he and another employee witnessed the contractor's forces plowing snow. The Carrier produced a statement from Manager of Track Maintenance Leake with its Submission asserting that on the dates in dispute a certain piece of equipment (a road grader) was not used. However, the Organization asserts that statement was not exchanged on the

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Form 1 Award No. 40859
Page 3 Docket No. MW-41308


property and there is no evidence that it was. In any event, we are sufficiently satisfied that the Organization has demonstrated that the contractor performed the work on at least some (if not all) of the dates in dispute.


As in Awards 40857 and 40858, supra, the Claimants shall be made whole for the lost work opportunities. However, in the exercise of our remedial discretion to formulate remedies, because there was an initial dispute concerning the precise days on which the contractor performed the work, the extent of relief granted to the Claimants shall be limited to the number of hours actually worked by the contractor's forces during the period set forth in the claim. The matter is remanded to the parties for a check of the Carrier's records to determine that amount.








This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.


                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


Dated at Chicago, Illinois, this 7th day of February 2011.