Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43941 Docket No. MW-44679 20-3-NRAB-00003-180153

The Third Division consisted of the regular members and in addition Referee Meeta A. Bass 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 Agreement was violated when, beginning on March 1, 2016 through March 31, 2016 and continuing, the Carrier assigned outside forces to perform Maintenance of Way work (removing the old drive shaft for lock wedges and installation of a new wedge system) at the bridge in the vicinity of Mile Post SAC 19.0 on the Raleigh/Rocky Mount Seniority District of the Florence Division (System File B17801016/2016-204538 CSX).

(2)     As a consequence of the violation referred to in Part (1) above, Claimants  B. Knisley, M. Downes, C. Ellis, E. Mack, A.Pope and

M. Watts shall now each be ‘... compensated with an equal proportion of (1,056) straight time hours, and (36) overtime hours; (1,092) man-hours; as well as any additional straight time and overtime hours expended by the outside contractor employees until these violations stop, at their appropriate rates of pay in effect during the period claimed. ***’” ”

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.

By letter dated April 12, 2016, the Organization submitted a claim on behalf of the Claimants alleging that the Carrier violated the Agreement when the Carrier assigned outside forces to perform the work of removing the old drive shaft for lock wedges and installation of a new wedge system at the bridge. By letter dated June 9, 2016, The Carrier denied the claim stating there was no violation. The parties conferenced the claim on November 15-18, 2016. The parties were unable to resolve the dispute, and the matter was advanced. The Claim is now before this Board for final adjudication.

The Organization contends that the Carrier violated the Agreement when it utilized outside forces to perform the claim worked and failed to comply with the mandates of MOA #2, Section 5.B.5. The Organization asserts that the claimed work is reserved to Maintenance of Way forces pursuant to the language of the Scope Rule and MOA#2.TheOrganizationassertsthateventhoughtheMOA#2doesallow theCarrier to assign outside contractors to performthe claimed work, in orderto do so, the Carrier is required to assign at least the same number of BMWED-represented employees as the contractor employs to work on a given project. The Organization argues that the Carrier failed to assign an equivalent number of employees to the project. The Organization argues that Carrier did not refute the evidence that no employees were assigntotheproject.Moreover,theOrganizationcontendsthattheappropriateremedy is to allow each of the Claimants compensation at their respective assigned rates of pay for all hours expended by the outside forces in the performance of the work. The Organization argues that the remedy makes the Claimants whole for the lost work opportunity and serves protect the integrity got the Agreement. It is the position of the Organization that the claim should be sustained.

The Carrier contends that the Organization failed to show that the Carrier violated any rules or agreements. The Carrier argues that the work is permitted under MOA 2, Section 5 and the Organization was properly notified. On June 10, 2015, the Carrier sent the Organization notice of intent to subcontract the Hopewell Bridge near milepost SAC 19.0; the claim worked was listed on the contracting out notice and conferencedwiththeViceChairman.TheCarriercontendsthattheOrganizationnever alleged that the work was not permitted under MOA2 nor did it allege that the Carrier did not use BMWE employees to assist the contractor. The Carrier asserts that the company has met allobligations to properly contract out theclaimedwork. TheCarrier maintains that there was no violation of the Scope Rule or MOA 2, and the other cited rulesaresuperfluous.FurthertheCarriercontendsthattheOrganizationfailedtomeet its burden of proof. Moreover, the Carrier contends that the Organization provided no evidence as to remedy or to substantiate the hours demanded in the Statement of Claim. Lastly, it is the position of the Carrier that the claim should be dismissed.

Applicable Agreement Rules

The pertinent provisions of the Agreement Between CSX Transportation, Inc, and ITS Maintenance of Way Employes Represented by the Brotherhood of Maintenance of Way Employes, effective June 1, 1999 are the Scope Rule, Rule 1, Rule 3, Rule 11, Rule 17 and Section 5 of the 2009 Memorandum of Agreement (MOA 2). The rules and agreement are incorporated herein as if fully rewritten.

The Board has carefully reviewed the submissions, arguments and other matter of record. The Board notes that there is no dispute regarding whether notice was given to the Organization. The Boards finds that the MOA 2 Section 5.B.5 provides that the Carrier is required to assign at least the same number of BMWED-represented employees as the contractor employs to work on a given project. Although the Carrier provided notice of intent to contract out the work, the Carrier did not introduce evidence that an equal number of BMWED-represented employees were actually assigned to the job.

The Carrier argues that the Organization never alleged in the original claim that Section 5.B.5 was in issue. The Carrier points out that it is not until the “second letter” that the allegation, which is a material fact in the dispute, is raised. It is not disputed that even though the new information and facts were asserted in the second letter, the record was not closed in accordance with the terms of the parties’ Agreement. The Carrier had the opportunity to refute the fact and did not. The Board now accepts the alleged fact as true. The Board finds that the evidence of record establishes a violation of the Agreement.

Claim sustained. The remedy in this case should not overlap time period covered in the remedy in Claim 20-3-NRAB-0003-180154.

AWARD

Claim sustained.

ORDER

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 5th day of March 2020.