THIRD DIVISION
Award No. 44720 Docket No. MW-45486
22-3-NRAB-00003-190309
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 November 10, 2017, the Carrier assigned or otherwise allowed outside forces to perform Maintenance of Way work (replace ties) in the Monroe Yard at Mile Post 69 on the Vicksburg Sub [System File 17 11 10 (089)/K0417-7543 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 its Maintenance of Way forces as required by the Side 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, A. Allen, T. Glass, L. Ludlow and W. Sneed shall each ‘… be compensated eight (8) hours per day at the regular rate of pay for one (1) day which totals
$243.44 for the Foreman, $226.80 for the Machine Operator, and
$214.48 for the Laborers 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.
The claim in this matter is limited to November 10, 2017, referencing “System File 17 11 10 (08)/K0417-7543 MSR.” Factual support for the claim for the date comes from statements attesting that CW&W contractors replaced ties at Monroe Yard milepost 69 on the Vicksburg Subdivision. Attachment Nos. 1, 2 to Employes Exhibit A-6.
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.”
According to the Carrier’s June 4, 2018 letter (Carrier Exhibit A at 40):
(a) As previously noted in Carrier's initial declination, Carrier records do not indicate contractor CW&W performed any tie replacement work noted in claim. Carrier records reflect the contractor picked up ties but did not replace any ties.
While picking up ties and replacing ties is arguably related work, nevertheless, there is a dispute in this record over what work was performed. The Organization asserts that the Carrier replaced ties and the Carrier asserts that ties were only picked up. We have no basis in this record to sort out precisely what work was performed. However, the burden is on the Organization to make that demonstration. Where there is an irreconcilable set of facts, the Organization has not carried its burden. Third Division Award 43837 (“As this Board has noted in previous awards, where there is a dispute in facts that cannot be resolved on the basis of the information in the record, the Board must find the factual dispute to be irreconcilable and dismiss the claim.”). See also, Third Division Award 43834 (“As this Board has noted in previous awards, where there is a dispute in facts that cannot be resolved on the basis of information in the record, the Board must find the factual dispute to be irreconcilable and dismiss the claim”). Finally, see Third Division Award 43833; 43832; 43831 (where disputed factual assertions were resolved against the Organization’s position).
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.