THIRD DIVISION
Award No. 44717 Docket No. MW-45480
22-3-NRAB-00003-190286
The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
(The Kansas City Southern Railway Company (former MidSouth Rail Corporation)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when, on October 24, 2017, the Carrier assigned or otherwise allowed outside forces to perform Maintenance of Way work (prepare a crossing for replacement) at Mile Post 107.3 on the Meridian Sub [System File 17 10 24 (085)/K0417-7506 MSR].
The Agreement was further violated when the Carrier failed to notify the General Chairman, in writing, as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto regarding the work referred to in Part (1) above and when it failed to assert good-faith efforts to reduce the incidence of subcontracting and increase the use of Maintenance of Way forces as required by the Letter of Agreement dated February 10, 1986 and the December 11, 1981 National Letter of Agreement.
As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants J. Downs, J. Sumrall and J. Smith shall each ‘... be compensated eight (8) hours per day at the regular rate of pay for one (1) day which totals $226.80 for the Claimants plus late payment penalties based on a daily periodic rate of .0271% (Annual Percentage Rate of 9.9%) calculated by multiplying the balance of the claim by the daily periodic rate and then by the corresponding number of days over sixty (60)
that this claim remains unpaid.’ (Emphasis in original).”
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.
There is no dispute that in the past the Carrier has subcontracted the work involved in this dispute and that, in the past, the covered employees have also performed the work. This is a mixed-practice case. The question in this case is sufficiency of notice under the governing Agreement language.
By letters dated December 13, 2016 and August 4, 2017, the Carrier sent annual notices of subcontracting to the Organization, both of which listed contractors and type of work to be performed on the Carrier’s properties during 2017. Carrier Exhibit A at 25-30.
There is no supplemental notification to the Organization in this record further detailing the work alleged to have been performed.
Standing alone, the annual notification to the Organization is insufficient for the Carrier to meet its notification obligations because it is too broad and generic to serve the purpose of the required notice. Third Division Award 43834. See also, Third Division Award 44709:
“(1) Standing alone, annual notice given by the Carrier to the Organization of its intent to subcontract work which just lists contractors and types of work to be performed is insufficient notification to the Organization.”
The claim in this matter limited – specifically to October 24, 2017 referencing “System File 17 10 24 (085)/K0417-7506 MSR.” Factual support for the claim for
that specific date comes from an employee statement dated November 3, 2017 stating that “I witnessed Z-A contractors performing below mentioned work Cutting Road Crossing at MP 107.3 working 4 hrs ... At, In-between, or near MP
107.3 on the Meridian Subdivision From Date 10-24-13 ... Number of Contractors Present: 3 ... Types of Contractors present 3. Attachment No. 1 to Employes’ Exhibit A-1, Sheet 1. There is another statement from two other employees citing the same October 24, 2017 work. Id. at Sheet No. 2. Therefore, this Board is limited to the claimed work on October 24, 2017.
In response, the Carrier states for this claim 7506/17 that for October 24, 2017 (Crossing replacement preparation – 3 contractors) “Per Garrett cross – Engineering Project Manager this contractor performed no work on the date and mile posts noted in the claim.” Employes’ Exhibit A-2, Sheets 2 and 3.
In this record, the Board is therefore faced with an irreconcilable set of facts which we cannot sort out. The employees state they saw the work performed and the Carrier denies the work was performed on the date and location stated by the employees. Because the burden is on the Organization to demonstrate the violation, in such cases where there is an irreconcilable set of facts, the claim must be denied. Third Division Award 44709:
“(5) Because these are contract disputes with the burden on the Organization, if there are disputed issues of fact which cannot be resolved in the record, those disputed facts are to be resolved against the Organization.”
Based on the above, the claim shall be denied.
Claim denied.
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 6th day of May 2022.