Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43482 Docket No. MW-44315 19-3-NRAB-00003-170402

The Third Division consisted of the regular members and in addition Referee David P. Twomey when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(CSX Transportation, Inc.

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned outside forces (Steve Schmith SAS, Inc.) to perform Maintenance of Way work (mow and string trimming) along the banks and right of way in Dunkirk, New York, Silver Creek, New York and Tonawanda, New York on the Buffalo and Cleveland seniority districts on May 28, 2015 instead of assigning employes J. Szadek, L. Czekanski and V. Tenamore thereto (System File J Szadek 002/2015-190979 CSX).

(2) The Carrier violated the Agreement when it assigned outside forces (Steve Schmith SAS, Inc.) to perform Maintenance of Way work (mow and string trimming) along the banks and right of way in Dunkirk, New York, Silver Creek, New York and Tonawanda, New York on the Buffalo and Cleveland seniority districts on August 7, 2015 instead of assigning employes J. Szadek, L. Czekanski and V. Tenamore thereto (System File J Szadek 001/2015-194782).

(3) The Carrier violated the Agreement when it assigned outside forces (Steve Schmith SAS, Inc.) to perform Maintenance of Way work (mow and string trimming) along the banks and right of way in Dunkirk, New York, Silver Creek, New York and Tonawanda, New York on the Buffalo and Cleveland seniority districts on

October 30, 2015 instead of assigning J. Szadek, L. Czekanski and V. Tenamore thereto (System File J Szadek 002/2015-197963).

(4) As a consequence of the violation referred to in Part (1) above, Claimants J. Szadek, L. Czekanski and V. Tenamore shall now be compensated '*** forty two (42) hours at the overtime rate of pay, including all credits and benefits for work performed by contractors' work forces to be divided equally and proportionally to each Claimant at their assigned rates of pay....'

(5) As a consequence of the violation referred to in Part (2) above, Claimants J. Szadek, L. Czekanski and V. Tenamore ¬shall now be compensated '*** thirty six (36) hours at the overtime rate of pay, including all credits and benefits for work performed by contractors' work forces to be divided equally and proportionally to each Claimant at their assigned rates of pay....'

(6) As a consequence of the violation referred to in Part (3) above, Claimants J. Szadek, L. Czekanski and V. Tenamore ¬shall now be compensated '*** thirty six (36) hours at the overtime rate of pay, including all credits and benefits for work performed by contractors' work forces to be divided equally and proportionally to each Claimant at their assigned 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.

We have reviewed all the photos presented to the Board in the context of the entire record. While each side presents their photos from their own perspective, we find from the photos that the area depicts quality cement retaining walls of varying heights depending on the terrain, with the landscaping containing ornamental nursery grown trees in wooden planters evenly spaced along the area, and with the terrain itself covered primarily with nursery grown overgrown ornamental grasses, with weeds as well (as opposed to brush-weed vegetation). Strictly limited to the evidence available to the Board in this case, we find that MOA 1, Section 2.A.5 allows contractors to perform cutting of the ornamental grasses in this particular case.

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 1st day of March 2019.