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 is a claim that arises under the farmer Atchison, Topeka & Santa Fe Railway Company (ATSF) Agreement, not Rule 55 or Appendix Y of the parties' current Agreement.
Can April 7 and $, 2004, the Carrier assigned an outside contractor to raise track on the Highline Track west of the Carl River Bridge at the Kansas City Terminal. According to the Carrier, the work in question was part of a larger project. The Highline project was substantial "a mufti-phase, large magnitude expansion and rehabilitation project" - and it had provided notice to the Organization an at least two prior occasions of its intent to contract the large project, beginning in 2002. Moreover, the Carrier contends that the specific job at issue was warranty work an the Argentine Fly Over and Third Main Extension Project. It was undertaken to correct flaws in work the contractor had done previously, but which had not became apparent until
According to the Organization, the work was not properly noticed. It was routine track maintenance work that Carrier forces normally perform and did not require piecemealing of a larger project. Moreover, there is no evidence to support the Carrier's contention that the work was performed under warranty, and the Carrier has the burden of proving its affirmative defense. The work should have been Form 1 Page 3
assigned to members of the Carrier's Track Department and the claim should be sustained.
The parties have argued about which Agreement controls this claim, the nature of the notice that was required, whether the work was routine track work, and whether it required the Carrier to piecemeal a larger project. However, when all is said and done, there is a dispute between the parties over a material fact: whether the work at issue was done under warranty or not. The Carrier has from the beginning asserted that the work in question was done under warranty to correct defects in the original work performed by the contractor, whereas the Organization alleges that the work was not done pursuant to any warranty. This is a material fact, because if the original work was properly contracted out - and that is not at issue in this claim - it is neither unreasonable nor a violation of the parties' Agreement for the Carrier to require the contractor to make good on any defects in its prior work. The only evidence in the record is an e-mail from a Terminal Engineer, stating that the work was done under warranty. There is no evidence from the Organization to the contrary. Under the circumstances, the Board has no way to evaluate the parties' respective factual contentions.
As numerous prior Awards have held, because the Board is unable to resolve disputes of material fact between the parties, we have no alternative but to dismiss the claim.
