Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43264 Docket No. MW-42679 18-3-NRAB-00003-140248
The Third Division consisted of the regular members and in addition Referee Randall M. Kelly when the award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
PARTIES TO DISPUTE: (
(BNSF Railway Company (Former Burlington (Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside forces (Lunda Construction) to perform Maintenance of Way and Structures work (help work on a bridge renewal project) on the bridge at Mile Post 372.2 in Thayer, Iowa on the Ottumwa Subdivision of the Nebraska Division on July 9, 10, 11, 12, 16, 17, 23, 24, 25, 26, 30, 31 and August 1, 2, 6 and 7, 2012 (System File C-12C100-438/10-12-0679 BNR).
(2) The Agreement was further violated when the Carrier failed to provide the General Chairman with an advance notice of its intent to contract out said work or make a good-faith effort to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces as required by Rule 55 and Appendix Y.
(3) As a consequence of the violation referred to in Parts (1) and/or (2) above, Claimants R. Finney, D. Monohon, Sr., and J. Clausen shall now be compensated for one hundred eighty (180) hours at their at their respective straight time rates of pay."
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.
Parties to said dispute were given due notice of hearing thereon.
The Claimants R. Finney has established seniority as a Bridge and Building (B&B) foreman in the B&B Sub-department. Claimant D. Monohon has established and holds seniority in the B&B Sub-department as a Truck Driver. Claimant J. Claussen has established and holds seniority in the Roadway Equipment Subdepartment as a Group 2 machine operator. During the time period involved herein, they were regularly assigned within their respective classifications.
According to the Organization, on July 9 through August 7, 2012, the Carrier assigned outside contractor Lunda Construction to construct and maintain bridges. Lunda used three employees, expending one hundred and eighty hours each at straight time. According to the Organization, "no special or unusual equipment was used by the contractor forces."
According to the Organization, the work of constructing, repairing and maintaining bridges and performing related bridge work on Carrier-owned property is typical Maintenance of Way work. Here, the Claimants assert that an outside contractor assisted Carrier employes on the bridge in question.
The Carrier denied the claim and requested proof that a contractor actually performed the work in question. On July 16, 2013, he Organization provided an email from Wayne Nielsen to Landy Walker. The email is dated August 30, 2012 and the Subject line is "Denied Claim is on its way, here are the pictures to back the claim." There are no pictures attached to the email in the record. In the email, Nielsen states:
"This is the information that I have. Claimants are Dan Monohon, Sr., truck driver, Joe Claussen, group 2 operator, and Randy Finney as the foreman.
This claim started on June 18th and lasted until Aug. 7th at 10 hours a day for four days a week, while contractor Lunda, was helping with the bridge at Thayer Ia. M.P. 372.2 on the Ottumwa subdivision of the Nebraska Division. Lunda had 1 foreman, 1 Trackhoe (Group 2) operator, and 1 truck driver, that also worked as a laborer when needed."
As has been consistently stated by numerous Boards, the Organization has the burden of showing the facts underlying the claim. This evidence merely restates the claim with no indication as to the source of the information. Perhaps if the photographs had been part of the record, there might be some evidence of a potential violation. However, this Board cannot base its findings on hearsay and summaries of suspected violations for which there is no direct witness.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 26th day of June 2018.