i Case No. 21
 i

    PARTIES Brotherhood of Maintenance of Way Employes

    TO

    DISPUTE: and

    Consolidated Rail Corporation

    STATEMENT (a) The Carrier violated the Rules Agreement ef

    OF

    CLAIM: fective April 15, 1944,,as modified September 1,

    1949, particularly Rule 1-Scope, as well as condi

    tions of Article IV-Contracting Out, contained in

    the May 17, 1968 National Agreement, when it en

    tered into a rehabilitation program on the Nes

    quehoning Valley Branch of the former Lehigh Valley

    ' Railroad and contracted the work to Railroad Con

    struction Corp. (Railcon) rather than recall from

    furlough and utilize qualified and available

    Maintenance of Way Employes.

    . (b) As the result of such violations, Claimants

    listed in Employes' Exhibits "B" and "B-1" hereto

    be compensated at the applicable rate, as shown

    in those Exhibits for each day the violation ex

    isted commencing September 20 and terminating

    October 31, 1977.

                                .. 2.203 ~D, .. 2


t FINDINGS: From September 20 to October 31, 1977, Railroad
 ' Construction Corporation, an independent contractor,
 performed accelerated maintenance work on the
 Nesquehoning Valley Branch between Nesquehoning
 Junction (MP0.0) and Tamamend, Pennsylvania (MP 16.7).
 This work was performed pursuant to contract be
 tween Railroad Construction Corporation and Conrail.
 Ownership of that Branch remained vested in the
          Trustee of Lehigh Valley Railroad Company. Unlike most of the

          properties of the Lehigh Valley, it had not been conveyed to

          Cdnrail in April 1976. The Commonwealth of Pennsylvania had

          obtained from the Trustee the right to use the branch for rail

          freight service operations and, though its Department of Trans

          portation, hereinafter referred to as the D.O.T'., entered into

          an operating agreement with Conrail whereby Conrail would operate

          over the Branch in consideration for certain compensation; he

          operating agreement 'entered into in March 1976)could by its terms

          be terminated on 30 days notice.

          Claimants are Conrail employes on furlough who

          had been responsible for maintenance on the Nesquehoning Branch.

          The use of the independent contractor to perform

          accelerated maintenance was not inconsistent with the terms of

          the operating agreement between Conrail and the Pennsylvania

          D.O.T. It, however, was in violation of Article IV of the

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            Petitioner's collective bargaining agreement with Conrail.-. Carrier did not comply with Article IV's requirements to meet with,Petitioner, in advance of contracting out work, in a "good faith"attempt to reach an understanding in connection with the proposed contracting toeutside firm.

            In Petitioner's view,~it also ran 'afoul of Section 509 of Title V of the Regional Rail Reorganization Act of 1973, as amended.. Carrier contends, and we agree, that it is not this Board's province to interpret legislation of the Congress. .Interpretation of Federal or State Statutes should be left to the judges and appellate machinery of appropriate courts.

            We nevertheless are not in accord with Carrier's view that it bears no responsibility in this matter. At the


. time it entered into tba operating agreement with the State,
            it knew that it had well defined.commitments under its agreement

            with Petitioner. Those commitments were not extinguished or

            modified in any material respect and Petitioner has not ratified

            the operating agreement.

            While Carrier is not the owner of the Branch in question and under some circumstances that fact would free it from liability, it was sufficiently in control of the disputed work, in our judgment, to require it to comply with the procedures of Article IV of its collective bargaining agreement. The Penn-

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            ' `o.Z ~-a 3 - /two. a-l

            sylvania D.O.T. could not free Conrail from contractual commit

            ments that were already in existence. A contrary conclusion would

            in this situation deprive employes of critical protection that

            they had acquired by agreement and of which all parties were

            aware. The record establishes no emergency basis for denying the

            work to the employes on furlough.

            This is not the type of situation that was considered by the Third-Division in Awards.20639 and 20644. The record here does not adequately show that Carrier lacked the power to observe the rules of its agreement with Petitioner.

                        Paragraph (a) of the claim will accordingly be

            sustained. Paragraph (b) will also be sustained subject to the

            deduction of any compensation received by claimants from Conrail

            during the claim.period. -


            AWARD: Claim sustained in accordance with last paragraph


                        of Findings.


                        Adopted at Philadelphia, Pa., G~'. / -7 1979.


            ORDER: Carrier is ordered to make the above Award effec

            tive on or before f~tg, 1 7 1979.

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". . . g2 ,'2- G 3 - -w o - .2 f

                    Harbx . Westo.n,k, Chairman


                                  v..


        Carrier Me rz' ` Employe ember


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