THIRD DIVISION
Award No. 44730 Docket No. MW-45642
22-3-NRAB-00003-190501
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 the Carrier assigned or otherwise allowed outside forces to perform Maintenance of Way work (operate fire suppression water trucks) between Mile Post 143.8 to Mile Post 3 on the Meridian Subdivision [System File 18 03 01 (15)/K0418-7618 MSR].
The Agreement was further violated when the Carrier failed to properly 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. Sumrall and J. Downs shall now each ‘... be compensated ten (10) hours per day at the regular rate of pay for eight (8) days which totals $2268.00 for the Machine Operators’ (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 letter dated December 15, 2017, the Carrier sent annual notice of subcontracting to the Organization, listing contractors and type of work to be performed on the Carrier’s properties during 2018. Carrier Exhibit A at 20.
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.”
Factual support for the claim comes from statements asserting that from March 1 to March 8, 2018 between mileposts 143.8 and 3, Loram and CWW
contractors used two water trucks to follow a grinding train on the Meridian Subdivision. Attachment No. 1 to Employes’ Exhibit A-1.
According to the Carrier’s June 6, 2018 letter (Carrier Exhibit A at 17-18):
“(a) Carrier records do not reflect that CW&W and Loram performed the work alleged in the claim ”
The above constitutes an irreconcilable set of facts requiring that the claim be denied. Third Division Awards 43837 and 43834. See also Third Division Award 44709:
“Fifth, where there are disputed issues of fact concerning whether the work was performed as claimed by the Organization (e.g., with respect to location, dates, identity of contractor, number of individuals working) which arise because employee statements do not correspond with the Carrier’s records as claimed by the Carrier, because the burden is on the Organization to demonstrate the asserted violation, those disputed facts are resolved against the Organization.”
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.