PUBLIC LAW BOARD NO. 2960
PARTIES Brotherhood of Maintenance of Way Employes
TO and
DISPUTE Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
1. The carrier violated the Agreement when, without prior
notice to the General Chairman, it contracted with an
outside concern to dismantle track commonly referred to as
the Morrison, Illinois siding on may 18 and 19, 1989
(Organization File 3KB-4496T; Carrier File 81-89-102).
2. Foreman L. Olade, Assistant Foreman R. Pillars and Boom
Truck Operator M. Lubbs shall be compensated an equal and
proportionate share of the ninety (90) man-hours expended by
the contractor."
FINDINGS: This Board, upon the whole record and all of the
evidence, finds that the Employees and Carrier involved in this
dispute are respectively Employees and Carrier within the meaning
of the Railway Labor Act as amended and that the Board has
jurisdiction over the dispute involved herein.
OPINION OF THE BOARD: In its initial claim, the Organization
made the following assertions:
"On May 18 and 19, 1989 a private contractor, Rock
River carriage, dismantled the siding in Morrison,
Illinois. The contractor provided six men to perform
all work connected with dismantling, sorting, loading,
and transporting all materials except the track ties
that were stacked by them and later picked up by
Carrier forces. The contractors men used a Semi
trailer, bobcat, and Front Endloader. The contractors
rendered 10 hours of service on May 18, 1989 and 5
hours on May 19, 1989 performing this work.
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"The Carrier failed to provide any notification to the
Brotherhood regarding the intent to contract out the
work described in this claim. Furthermore, the work
involved did not require special skills, equipment or
material."
The Carrier responded, asserting that "the dismantled track
at Morrison, Illinois was purchased by an outside contractor, and
all material was retained by the outside contractor. None of the
material was returned to the Transportation Company, in that the
material was not owned by the Transportation Company."
Accordingly, there was no violation, in their opinion.
Subsequently, the Union asked for a copy
of
the contract with the
outside concern. It was not provided until roughly a year later,
coincidentally on the same day the Parties advanced the case to
the Board.
Before the Board, the organization maintained that the
dismantling of track is work specifically reserved to them by
virtue of Rule 1 (b). The Carrier continued to argue that
because the track was sold "as is, where is," the ownership left
the Carrier and, therefore, left the scope of the Agreement.
The first problem with the Carrier's argument is that at the
time the work in question was done, the track was owned by the
Carrier. The work was performed May 18 and 19. The contract to
sell this particular section of track was not consummated until
June 1, 1989. There was an earlier basic contract between the
Carrier and the contractor, but this merely set the general terms
for future agreements over specific sections of track. Because
the track was still the Carriers at the time of the dismantling,
they cannot hide behind the lack of ownership/control defense.
Since the Carrier owned the track and since Rule 1 (b)
specifically reserves dismantling work to BMWE forces, a
violation of the Agreement was manifest.
Even if we were to get beyond the fact that the track was
owned by the Carrier, there is a critical factual dispute which
would have to be resolved. In its claim, the organization
asserted that the contractor piled up the ties to be removed by
the Carrier. The Carrier claimed the contractor removed
everything. This would be critical. Selling surplus track and
ties (from the top of the rail to the bottom of the tie) is one
thing. However, having the contractor dismantle and remove the
entire track unit but retaining a portion of it in the ownership,
control, and for the convenience of the carrier would violate the
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Agreement. See Third Division Award 24280, where it was stated
in part:
"The claim has merit to some degree, however, in
that the dismantling and removing performed by the
purchaser included work on behalf of the carrier which
appears to the Board to be considerably more than
incidental to the removal of the purchaser's property.
"The Organization in its claim states that the
purchaser was 'taking selected rails and ties and
piling them for the Milwaukee Road . This
material is and continues to be Milwaukee Road
property.' Such contention was not denied by the
Carrier. In its correspondence, the' Carrier states
'The contractor may have also found it necessary to
handle Milwaukee Road property to avoid damage . . .
while he is attempting to remove his own personal
property.'
"Given this state of the facts, the Board finds
that the Carrier caused outside forces to perform work
customarily and normally performed by Maintenance of
Way employes to the extent of dismantling and storing
materials for continuing use of the Carrier."
While we don't have to get to this question, since the
carrier owned the track at the time of the work, such a question
may have to be addressed in future cases.
AWARD
The claim is sustained.
Gil Vernon, Chairman
D. D. Bartholomay
Emplo ee Mem r
Dated:
I
J M. Harvieux
aier Member