This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
After review of the record, the Board makes the following findings of fact. By Service Order No. 37701 dated July 11, 2007, the Carrier provided the Organization with an advance written notice of its intent to have a contractor bore and jack a new 120 foot by 32 inch culvert under mainline track located at Mile Post 66.11 on the Spokane Sub-Division in Sagel, Idaho. The Carrier included the following statement in the notice, "Railroad will provide flagman."
The contractor selected under the bid described in the above notice, began its work on November 26 and continued on November 27, 28, 29, 30, December 3, 4, 5, 6 and 7, 2007. The Carrier did not provide flag protection for the contractor or assign any of its employees to serve as the Employee In Charge to protect its interests, because the contractor worked at a distance from the track greater than that which would require a Carrier supplied flagman. In the course of the contractor's performance of the involved work, the track substructure collapsed. The Carrier took one-half mile of mainline track out of service. The Carrier assigned its forces to place ballast to reinforce the substructure of the track at the area where the contractor bored and jacked the new culvert.
This is not a case in which the Carrier elects to assign a flagman and the dispute centers on whether the selection comports with all provisions of the Agreement. Although the Carrier initially anticipated using a flagman to provide protection for the contractor and the Carrier's interests when it provided the July 11 notice to the Organization, by all accounts the Carrier did not assign a flagman. The statement placed in the record during the on-property handling describes the discovery of contractor employees on the track without protective equipment on December 6. Nonetheless, the statement does not indicate that the contractor's employees were observed performing flagman work. There is no suggestion that the Carrier assigned any of its employees to provide flag protection.
Board has no authority to comment on or determine what may appear to be violations of General Codes of Operating Rules, Safety Rules or Roadway Protection regulations, unless those directives are incorporated within the framework of the parties' collective bargaining agreement. (See Third Division Award 20383.) The Board has no authority to direct the methods of operation of the Carrier. (See Third Division Award 15615.) The Board's authority is limited to determining whether the parties' Agreement has been violated. If it has, the Board finds and fashions a remedy that addresses the violation.
The Board lacks authority to direct the Carrier to assign a flagman. The Carrier acted within its managerial discretion when it elected to refrain from assigning a flagman. The Organization failed to identify any Rule that required the Carrier to assign a flagman under the circumstances of this case. The Board, therefore, finds that the Carrier did not violate the Agreement.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.