Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45402 Docket No. MW-47697
25-3-NRAB-00003-221105
The Third Division consisted of the regular members and in addition Referee Diego Jesús Peña when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
PARTIES TO DISPUTE: (
(Keolis Commuter Services STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces (Barletta Heavy Construction) to perform Maintenance of Way and Structures Department work (moving rail sections and removing rail, track ties and ballast for the replacement of rail, track ties and ballast, as well as surfacing work and distressing of rail) on the Needham Branch near Robert’s Way Bridge beginning June 1, 2021 and continuing (System File S-2418/BMWE 90/2021 KLS).
The Agreement was violated when the Carrier assigned outside forces (J.F. White Construction) to perform Maintenance of Way and Structures Department work (including but not limited to, installing temporary crossing with timbers and ballast) on the Worchester Mian Line beginning June 2, 2021 and continuing (System File S-2124K248)BMWE 64/2021).
The Agreement was violated when the Carrier assigned outside forces (Delta Rail Construction) to perform Maintenance of Way and Structures Department work (including but not limited to, moving old insulated joints and reinstalling and welding in new insulated joints) on the Middleboro Mail Line on June 15 and 16, 2021 (System File S-2124K-2410/BMWE 65/2022).
The Agreement was violated when the Carrier assigned outside forces (Barletta) to perform Maintenance of Way and Structures Department work (moving a Mark 4 tamper with a truck and trailer and then placing the tamper on the tracks and traveling it) to the Neddham Branch and Needham Layover on June 2 through June 3, 2021 (System File S-2124K-249/BMWE 715/2021).
The Agreement was violated when the Carrier assigned outside forces (J. F. White Construction) to perform Maintenance of Way and Structures Department work (including but not limited to, installing temporary crossing with timbers and ballasts) on the Dorchester Branch near Mile Post 255.10 on August 18 through 19, 2021 (System File S-2124K-2417/BMWE 805/2021).
The Agreement was violated when the Carrier assigned outside forces (Barletta Heavy Construction) to perform Maintenance of Way and Structures Department work (including but not limited to, distributing tie plates in preparation for bridge guardrail installation) on the Worchester Main Line MPBL 16.07 on August 17, 2021 (System File S-2124K-2416/BMWE 81/2021).
The Agreement was further violated when the Carrier failed to comply with the advance notification and conference provisions in connection with the Carrier’s plans to contract out the work referred to in Parts (1) and/or (2) and/or (3) and/or (4) and/or (5) and/or (6) above and when it failed to assert good faith efforts to reach an understanding concerning said contracting out as required by Rule 24 of the Agreement.
As a consequence of the violations referred to in Parts (1) and/or (7) above, Claimants J. Castro, A. Parma, J. Spicer, S. Reaux, C. Beloli,
R. Rowe, J. Walker, T. Glennon, M. Norton, C. Casserly, G. Harrigan, M. Juscak, B. Ferraro, M. Sauliner, R. DePorfio, D. Enes, C. Cummings, C. Scott, D. Vaschon, D. Veroneau, J. Cabrera,
J. Joyce, J. Alvarez, M. Bernis, R. Lomberto, L. Gentle, M. O’Neil,
C. Grant, R. Burke, J. McCabe, B. Hogan, J. Burgos, R. Savory, T. Coyne, M. Cafano, D. McKenzie, A. Nichols, A. Zola, W. McCormick, B. Madore, C. Lacey, C. Sanderson, K. Bryant, L. Bovill, L. Colon, M. Brundige, M. Doughty, M. Spicer, P. Espinola,
T. Belyea, M, Kinnebrew, J. Lund, R. Ducom, C. April and M. Melo must now ‘… be fully compensated all hours worked by contractor employees, to be divided equally and proportionately amongst all Claimants at their applicable rate of pay (including overtime and double time rates), as well as all credits for vacation and all other benefits for lost work opportunity.***’
As a consequence of the violations referred to in Parts (2)) and/or
(7) above, Claimants E. Pillsbury, Z. Culver, B. Finck, P. Taylor and P. O’Loughlin must now ‘… be fully compensated all hours worked by contractor employees, to be divided equally and proportionately amongst all Claimants at their applicable rate of pay (including overtime and double time rates), as well as all credits for vacation and all other benefits for lost work opportunity.***’
As a consequence of the violations referred to in Parts (3) and/or (7) above, Claimants J. Castro, A. Parma, J. Walker, J. Spicer, T. Glennon, M. Norton, C. Beloli, J. Rowe, and C. Casserly must now ‘… be fully compensated all hours worked by contractor employees, to be divided equally and proportionately amongst all Claimants at their applicable rate of pay (including overtime and double time rates), as well as all credits for vacation and all other benefits for lost work opportunity.***’
As a consequence of the violations referred to in Parts (4) and/or (7) above, Claimants T. Cormier, T. Donovan, A. Catino and D. Nickerson must now ‘… be fully compensated all hours worked by contractor employees, to be divided equally and proportionately amongst all Claimants at their applicable rate of pay (including overtime and double time rates), as well as all credits for vacation and all other benefits for lost work opportunity.***’
As a consequence of the violations referred to in Parts (5) and/or (7) above, Claimants R. Goscinak, B .Nesbitt, C. Rivera and J. Hartley must now ‘… be fully compensated all hours worked by contractor employees, to be divided equally and proportionately amongst all Claimants at their applicable rate of pay (including overtime and double time rates), as well as all credits for vacation and all other benefits for lost work opportunity.***’
As a consequence of the violations referred to in Parts (6) and/or (7) above, Claimants E. Pillsbury, A. Finck, P. O’Loughlin and J. Hartley must now ‘… be fully compensated all hours worked by contractor employees, to be divided equally and proportionately amongst all Claimants at their applicable rate of pay (including overtime and double time rates), as well as all credits for vacation and all other benefits for lost work opportunity.***’
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.
All the Claimants identified in the Statement of the Claims have seniority in the Carrier’s Maintenance of Way and Structures Department, and on the relevant dates pertaining to this claim, were assigned and working their respective positions.
On July 1, 2014, the Carrier contracted with Massachusetts Bay Transportation Authority (“MBTA”), a separate entity from Carrier, to operate and maintain commuter rail service. The MBTA owns the commuter rail property, infrastructure, rolling stock and other equipment the Carrier uses to operate the commuter rail service. MBTA retains the right, as owner, to perform work and bid out work on its property in the same locations where the Carrier functions.
If the MBTA requests the Carrier to perform any work on its property, it does so under the terms of Schedule 9, Part 1 of the Operating Agreement between the Carrier and MBTA which states:
The [Carrier] shall perform any Services not otherwise required in this Agreement, when and as directed in writing by the MBTA, subject to the provisions of Section 4 (Emergency Supplemental Work) of this Schedule
9 (Supplemental Work), such written direction to contain particular reference to this Schedule 9 (Supplemental Work) and to designate the work to be done as Supplemental Work.
Employees of Barletta Heavy Construction (“Barletta”), J.F. White Construction (“White”) and Delta Rail Construction (“Delta”) were observed performing Maintenance of Way Department work on the dates identified in the Statement of the Claims at multiple locations. Barletta, White and Delta are separate entities not affiliated with the Carrier.
In its Position Statement, the Organization claims that the Carrier retained Barletta, White and Delta to perform the work at issue. The Organization maintains that the Carrier’s retention of these contractors violates Rules 1, 5, 7, 11 and 24 of the Parties’ Agreement. Rule 24 requires that the Carrier notify the General Chairman fifteen (15) days prior to the date of retaining a contractor. The Organization asserts that at no time did the Carrier notify the Organization of its intention to contract out this work and seeks contractual remedies for the Carrier’s failure to comply with the Rules cited above.
The Carrier denies that it violated Rules 1, 5, 7, 11 or 24. The Carrier maintains that MBTA, as owner of the rail property, retained Barletta, White and Delta to perform the work at issue.
This is a rules case. For that reason, the Organization has the burden of proving its case by a preponderance of the evidence. Generally, in rules cases, the Board will examine the facts brought forward by the Organization and compare and analyze those facts against the relevant agreement provisions at issue.
The burden was on the Organization to prove that the work performed by Barletta, White or Delta was under the Carrier’s scope and authority. There is no
evidence that the Carrier was under contract with MBTA to perform the work at issue. The Operating Agreement between the Carrier and the MBTA requires that any supplemental work to be performed by the Carrier on MTBA property must be agreed to by MBTA in writing. The Organization did not produce any documentation authorizing the Carrier to either perform the work in question or retain a contractor to perform the work in question.
The Board thoroughly reviewed all the evidence submitted by the Organization and finds no evidence to support its claims.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimants not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 19th day of December 2024.