Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45409 Docket No. MW-47712
25-3-NRAB-00003-230017
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 [including but not limited to removing approximately four hundred (400) feet of track, replacing the segment of track they out, tamping it, destressing the rail and performing thermit welds] on the Worchester Main Line near Beacon Street and Intervale Road near CP11 and CP21 beginning on July 23, 2021 at 10:00 P.M. and working non-stop through 4:30
A.M. on July 26, 2021 (System File S-2124-K-2412/BMWE 92/2021 KLS).
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 Part (1) 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 (2) above, Claimants A. Secchiaroli, T. Cormier, B. Larson, T. Donovan, D. Nickerson, A. Catino, K. Griffith, D. Secchiaroli, F. Durant, T. Davidson, R. Lennox, D. O’Connell, J. Silva, P. O’Loughlin, Z. Culver, A. Finck, E. Pillsbury and T. D’Arcy 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.
Claimants A. Secchiaroli, T. Cormier, B. Larson, T. Donovan, D. Nickerson, A. Catino, K. Griffith, D. Secchiaroli, F. Durant, T. Davidson, R. Lennox, D. O’Connell, J. Silva, P. O’Loughlin, Z. Culver, A. Finck, E. Pillsbury and T. D’Arcy have established and maintain 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 (“BHC”) were observed performing Maintenance of Way Department work on July 23, 2021 removing approximately four hundred (400) feet of track, replacing the segment of track they out, tamping it, destressing the rail and performing thermit welds on the Worchester Main Line near Beacon Street and Intervale Road near CP11 and CP21 beginning at 10:00 PM and working non-stop through 4:30 AM the following day on July 26, 2021. BHC is a separate entity not affiliated with the Carrier.
In its Position Statement, the Organization claims that the Carrier retained BHC to perform the work at issue. The Organization maintains that the Carrier’s retention of BHC as contractor violates Rules 1, 5, 7, 11 and particularly 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 BHC 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 BHC 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 BHC 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.