PROCEEDINGS BEFORE PUBLIC LAW BOARD NO. 3781
Carrier Member: J. C. Amidon Labor Member: D. D. Bartholomay
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
CONSOLIDATED RAIL CORPORATION
Claim of the Brotherhood that:
1. The Agreement was violated when the Carrier assigned outside forces (Middleton Roofing
Company) to removed and replace the old roof on the Collinwood Yard Office Building on
September 23, October 13, 14 and 15, 1993 (System Docket MW-3426).
2. The Agreement was violated when the Carrier assigned outside forces (Middleton Roofing
Company) to remove and replace the old roof on the Collinwood YMCA Dorm Building on
October 21, 22, 23, 25, 26, 27, 29 and November 2, 1993 (System Docket MW-3425).
3. The Agreement was further violated when the Carrier failed to furnish the General Chairman
with advance written notice of its intention to contract out the work described in Parts (1) and
(2) above, as required by the Scope Rule.
4. As a consequence of the violations referred to in Parts (1) and/or (3) above, B&B Mechanics
F. Hoyt, W. Johnson, K. Champa, R. H. Zinni and J. Cogar shall each be allowed thirty-two (32)'
hours' pay at their respective straight time rates.
5. As a consequence of the violations referred to in Parts (2) and/or (3) above, B&B Mechanics
F. Hoyt, R. H. Zinni, K. Champa, A. Colarusso and G. Pongonis shall each be allowed fifty-six
(56) hours' pay at their respective straight time rates and eight (8) hours' pay at their respective
time and one-half rates.
FRED BLACKWELL
ATTORNEY AT LAW
19129 ROMAN WAY
1
GAITHERSBURG,
-
MARYLAND 20879
/301) 977-5000
PLB No. 3781 / Award No.
209 - Cases 209 & 210
FINDINGS
:
Upon the whole record and all the evidence, after hearing in the Carrier's 0gice,
Philadelphia, Pennsylvania, the Board finds that the parties herein are Carrier and Employees
within the meaning
of
the Railway Labor Act, as amended, and that this Board is duly constituted
by agreement and has jurisdiction of the parties and of the subject matter.
DECISION
:
The Claim in System Docket
MW-3425
is denied; the claim in System Docket
MW3426
is sustained.
OPINION
This dispute involves two (2) combined Scope claims which allege that the
Carrier violated the BMWE Scope by using an outside contractor (The Middleton Roofing
Company) to remove and replace the roof on (1) the Collinwood YMCA Dorm Building
in October and November 1993 (System Docket MW-3425) and on (2) the Collinwood
Yard Office in September and October 1993 (System Docket MW-3426). Both of these
structures are in the Collinwood Yard, Cleveland, Ohio, on the Cleveland Seniority
District of the Pittsburgh Division.
From full review of the record the Board finds that the Dorm Building Claim must
be denied and that a sustaining award is in order respecting the Yard Office Building
Claim.
The Claim concerning the roofing of the Dorm Building is set out in the Or
ganization's submission as follows:
FRED BLACKWELL
"The Agreement was violated when the Carrier assigned outside forces
ATTORNEY AT LAW
19129 ROMAN WAY
GARHERSBURG,
MARYLAND 20879
(301) 977-5000
t
PLB No. 3781 / Award No. 209 - Cases 209 & 210
(Middleton Roofing Company) to remove and replace the old roof on the
Collinwood YMCA Dorm Building on October 21, 22, 23, 25, 26, 27, 29
and November 2, 1993 (System Docket MW-3425)."
The Claim concerning the roofing of the Yard Office Building is set out in the
Organization's submission as follows:
"The Agreement was violated when the Carrier assigned outside forces
(Middleton Roofing Company) to removed and replace the old roof on
the Collinwood Yard Office Building on September 23, October 13, 14
and 15, 1993 (System Docket MW-3426)."
As regards the claim concerning the roofing of the YMCA Dorm Building (Sys
tem Docket MW-3425) the Organization alleges that the Carrier failed to furnish the
General Chairman with advance written notice of the said contracting out pursuant to the
Scope Rule's notice provisions concerning contracting out, and that the work of repairing
and maintaining roofs is contractually reserved to the Carrier's B&B Department forces.
Consequently, the contracting of the roofing work on the Dorm Building to an outside
Company violated the Scope of the applicable Agreement.
The Carrier submits that the performance of the work in question by an outside
contractor was contractually permissible and that the notice provisions in the Scope rule
were not violated.
The evidence in the record as a whole does not establish the allegations on
which this claim is based and the claim must therefore be denied for want of proof.
More specifically, the record does not support the Organization's assertion that the
FRED BLACKWELL
Carrier failed to give advance written notice of its intention to contract out the roofing
ATTORNEY AT LAW
19129 ROMAN WAY
GAITHERSOURD, 3
MARYLAND 20879
(301) 977-50DO
n f
I
PLB No. 3781 / Award No. 209 - Cases 209 & 210 -
work on the Dormitory Building at Collinwood Yard, and indeed, the record affirmatively
established that said notice was given by Carrier to General Chairman J. P. Cassese,
Sr., by letters dated October 8 and 13, 1993.
As regards the merits of the claim, the record shows that the BMWE Employees
have installed some types of roofs, but they have not installed the rubberized type of roof
that was installed on the Dormitory Building at the Collinwood Yard. The installed rub
berized roof was superior in quality to the prior roof and its installation required equip
ment that the Carrier did not own. In addition, in order for the work to be protected
under the manufacturer's twenty (20) year warranty on the roof, the roof was required
to be installed by an authorized agent of the manufacturer.
In view of the foregoing, and based on the record as a whole, the claim con
cerning the roofing of the YMCA Dorm Building in System Docket MW-3425 will be
denied for lack of record support.
As regards the claim concerning the roofing of the Collinwood Yard Office Build
ing (System Docket MW-3426), the Organization alleges that the Carrier failed to furnish
the General Chairman with advance written notice of the said contracting out pursuant
to the Scope Rule's notice provisions concerning contracting out, and that the work of
repairing and maintaining roofs is contractually reserved to the Carrier's B&B Department
forces. Consequently, the contracting of the roofing work on the Dorm Building to an
FRED BLACKWELL
outside Company violated the Scope of the applicable Agreement.
ATTORNEY AT LAW
19129 ROMAN WAY
GARHERS8URG. 4
MARYLAND 20879
(301) 9775000
PLB No. 3781 / Award No. 209 - Cases 209 & 210
The Carrier submits that the performance of the work in question by an outside
contractor was contractually permissible and that the notice provisions in the Scope Rule
were not violated.
The Carrier's asserted reasons for denying the claim concerning the roofing of
the Collinwood Yard Office Building (System Docket MW-3426), like its asserted reasons
for denying the claim concerning the roofing of the Dorm Building, is an affirmative defense which, in order to prevail, must be supported by probative evidence that proves
the existence of said reasons for denying the claim. Such evidence is not present in the
confronting record and accordingly, the Carrier's affirmative defense is rejected for want
of proof and the allegations in support of the claim stand unrebutted of record.
In view of the foregoing, and based on the record as a whole, the claim concerning the roofing of the of the Collinwood Yard Office Building (System Docket MW3426) will be sustained.
Fred Blackwell
Chairman / Neutral Member
Public Law Board No. 3781
July 15, 1998
FRED BLACKWELL
ATTORNEY AT LAW
19129 ROMAN WAY
GARHERSBURG,
MARYLAND 20979
hot)
977000
PLB No. 3781 / Award No. 209 - Cases 209 & 210
The record does not support the claim for the work of roofing the Dorm Building
in Collinwood Yard, Cleveland, Ohio, (System Docket MW-3425) and accordingly, said
claim is hereby denied for lack of record support.
In regard to the claim for the work of roofing the Yard Office in Collinwood Yard,
the Carrier's affirmative defense fails for want of the requisite support and therefore, the
allegations in support of the claim stand unrebutted of record. Accordingly, the claim for
the work of roofing the Collinwood Yard Office in Collinwood Yard, Cleveland, Ohio,
(System Docket MW-3426) is sustained.
BY ORDER OF PUBLIC LAW BOARD NO. 3781.
Fred Blackwell, Neutral Member
J. C. Amidon, Carrier Member D. D. artholomay, La r Member
Executed on , 1998
DOC\CONRAIL\3781\209-210.JI5
FRED BLACKWELL
ATTORNEY AT LAW
19129 ROMAN WAY
GAfrHERSBURG,
MARYLAND 20979
(301) 977-5000