PUBLIC LAW BOARD N0. 4431
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES:
Parties
to the
VS.
Case No. 7
Dispute
BURLINGTON NORTHERN RAILROAD COMPANY
STATEMENT OF CLAIM
1. The Agreement was violated when the Carrier
assigned dismantling and salvage work in the
Othello Yard at Othello, Washington to outside
forces beginning September 22 through November 7,
1986.
2. The Carrier also violated the Agreement when it did
not give the General Chairman advance written
notice of it's intention to contract out said work
as stipulated in the Note to Rule 55.
3. As a consequence of the aforesaid violations,
Section Foremen C.G. Vela and H.E. Johnson;
Sectionmen M.L. Serosky, R.H. Ferguson, A. Basso,
P. Balli and G.C. Meacham; Truck Driver J.A. White
and Machine Operators P.A. Lorea and R.J. Greetan
shall each be allowed two hundred eighty (280)
hours' straight time pay and seventy (70) hours'
overtime pay at their respective rates in addition
to any other compensation they may have earned to
compensate them for lost work opportunity due to
contractor forces performing their work.
OPINION OF THE BOARD
On July 24, 1986, Carrier and Maverick Salvage, Inc:~
of Spokane, Washington, entered into an agreement for
Maverick to purchase and remove six miles of yard track,
ties, crossing, etc. at the Othello Washington Yard. At the
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same time, Carrier submitted a bid to Maverick to buy back
10,000 cross-ties and 791_ Switch ties, banded and delivered
to a designated location at Othello, Washington, for $10,791
or $1 dollar per tie.
Petitioner contends that the removal of the track ties
and other items by Maverick was an illegal subcontract of
BMWE work and not an arms-length sale of Company property,
as claimed by Carrier. Petitioner argues that the buy back
of 10,791 ties was a subterfuge to avoid utilizing Carrier
personnel to remove, band, and stack the ties that Carrier
intended to keep. Carrier only sold part of the yard to
Maverick. The ties that were bought back never left the
control of Carrier and therefore should have been worked by
Carrier personnel. Petitioner relies on 3rd Division Award
No. 24280 to support its case.
Carrier, on the other hand, contends that it sold the
total yard to Maverick. Maverick owned the scrap and did
not have to sell the 10,791 ties back to Carrier, if it
chose not to. Carrier contends that the transaction was a
sale and that, as such, no subcontract existed and no
violation of the Note to Rule 55 took place.
This Board has reviewed the submissions of both parties
and has paid special attention to the contract between
Carrier and the Maverick Salvage Company. This review
compels the Board to conclude that Carrier did indeed sell
the yard to Maverick and that all material in the yard was
transferred to Maverick when the deal was consummated on
July 24, 1986. For Carrier to buy back good reusable ties
at a bargain price was not unusual nor was it an Agreement
violation.
ties that
Carrier a
agreement
point lef designate
This
t
Carrier sought a price from Maverick for 10,791
it indicated it could reuse. Maverick gave
price of $1 a piece. Carrier accepted and the
was made. The wording of the contract on that
the decision to buy up to Carrier and did not
a pre-agreed-upon to price.
Board cannot support Petitioner in this instance
and we do not think that Award No. 24280 is on point. In
that Award, Carrier maintained ownership of the ties in
question throughout the time the track was being dismantled.
In this instance, Carrier did not. It sold the yard and
then bought back certain ties.
AWARD
The claim is denied.
R.E. Dennis, Neutral Member
MM ne Timberman, Carrier Member
ltli3
Date proval
ice Glover, Employe Member