PUBLIC LAW BOARD NO. 2960
AWARD NO. = I !pq
CASE NO. 259
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when outside forces were used to prepare a new
site for the relocation of the Car Department's tool house near Rapid City, South Dakota
(Organization File 6LF-2225 T; Carrier File 81-88-33).
(2) The Agreement was further violated when the Carrier did not give the General
Chairman prior to written notification of its plans to assigned said work to outside forces.
(3) Claimants R. D. Hanson and C. Bossert shall be compensated eight and one-half
hours each at the applicable time and one-half rate of pay for 902 and 903 machine operators
rate of pay respectively."
OPINION OF THE BOARD:
This Board, upon the whole record and all of the evidence, finds and holds that the
Employe and Carrier involved in this dispute are respectively Employe and Carrier within the
meaning of the Railway Labor Act, as amended, and that the Board has jurisdiction over the
dispute involved herein.
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Claimant Hanson held seniority as a 902 Machine Operator and Claimant Bossert held
seniority as a 903 Machine Operator but both employes were working as Trackmen on the
date of the alleged violation, October 1, 1987. There is no dispute that on this day the
Carrier utilized Berg, Inc., to prepare a new site for the relocation of the Car Department's
tool house. Two employes of Berg, Inc., operated one dozer, one motor grader, and one
dump truck to load and transport dirt, grade the area, and spread and level fines.
The only factual dispute has to do with the source of the equipment used by Berg,
Inc. In the initial claim, the Vice Chairman asserted that Berg rented the equipment in
question from "Rapid Rental." In his denial of the claim, the Assistant Vice President
contested this factual assertion, maintaining that Rapid Rental only had one of the three
pieces of equipment, that being the dump truck. Thus, he asserted, this was the only piece
of equipment which had been rented.
The General Chairman on appeal made a counter assertion that Berg did not own a
motor grader; therefore, it had to have been rented from another source. There was no
rebuttal to this assertion by the Carrier.
It is well established that the Carrier is obligated to make a good-faith effort to rent
equipment for use by its forces in order to accomplish their scope-covered work. In this
case the unrebutted assertions of the Organization--which must stand as fact--establish that
Berg had to rent two of the three pieces of equipment used. This raises the obvious question
if Berg could rent these two pieces of equipment, why couldn't the Carrier? As for the third
piece of equipment, there is no evidence that they made any effort to rent it. Moreover,
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there was no emergency which would have prevented the Carrier from attempting and/or
making rental arrangements. In short, the Board, under these circumstances, is not
convinced that the Carrier made the requisite good-faith effort.
The Carrier's other defense is that the Claimants were fully employed. However, it
is noted that they were employed as Trackmen and it is noted the claim is for the Machine
Operator rate of pay. In this regard they did lose an opportunity to enhance their
compensation. Additionally, there is no evidence that the Carrier couldn't have rearranged
forces and/or work in such a way so the Claimants could have been available.
While the Claimants were damaged, the claim is purely excessive. They are entitled
only to the difference between the straight-time Trackman rate and the applicable straighttime Machine Operator rate for the number of hours expended by the two contractor
employes which was 8.5 hours each.
AWARD:
The claim is sustained to the extent indicated above.
Gil Vernon, Chairman
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D. . artholomay Jo M. Harvieux
Employe Member 'er Member
Dated: - '~w -9
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