Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45011 Docket No. MW-46395
23-3-NRAB-00003-210164
The Third Division consisted of the regular members and in addition Referee Barbara C. Deinhardt when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
PARTIES TO DISPUTE: (
(Indiana Harbor Belt Railroad Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces (Beverly Asphalt) to perform Maintenance of Way Department work asphalting a road crossing at 148th Street in East Chicago, Indiana on the East Seniority District on August 14, 2019 (System File D19IHB1- 11 IHB).
The Agreement was further violated when the Carrier failed to notify the General Chairman of its intent to contract out the work referred to in Part (1) above and when it failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the use of its Maintenance of Way forces as required by the Scope Rule 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 S. Gengnagel, J. Tuttle and A. Soto must now each ‘… be compensated for all straight and overtime hours worked by Beverly Asphalting on August 14, 2019 to be divided equally and proportionally between Claimants at their applicable straight and overtime rates of pay.’”
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form 1 Award No. 45011
Page 2 Docket No. MW- 46395
23-3-NRAB-00003-210164
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.
The Carrier was performing repairs to a rail crossing at 148th St in East Chicago, Illinois. The work was done by Carrier forces. Following that work, the public road leading up to the crossing had to be asphalted. This work was contracted by the Carrier to Beverly Asphalt, a contractor licensed by the City and State. Beverly Asphalt crew worked for eight hours on August 14 and eight hours on August 15.
The Organization argues that the work performed by the Beverly Asphalt crew was work customarily assigned to and performed by Organization members. Claimants were fully qualified and capable of performing this work. The Carrier failed to notify the General Chairman in advance of this subcontracting out and failed to make a good faith effort to reduce the incidence of subcontracting.
According to the Carrier, the Scope Rule only applies to work on property owned by the Carrier. The asphalt work needed on the public roadway is not Scope-covered work nor has this work been the exclusive work of Organization members. Eight other road crossings have been done in a similar manner in 2017 and 2018 without notice and without any claim filed by the Organization. No notice was required here.
Upon a review of the record as a whole, the Board finds that the Organization has not met its burden of proof. As found by the Board in a factually similar case, Award 45007, “There is insufficient evidence that the work occurred on the Carrier’s property. Therefore, the above-referenced rules were not violated.”
Form 1 Award No. 45011
Page 3 Docket No. MW- 46395
23-3-NRAB-00003-210164
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 3rd day of August 2023.