PUBLIC LAW BOARD NO. 5606
PARTIES) BROTHERHOOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION OF THE INT'L BROTHERHOOD OF TEAMSTERS
TO )
DISPUTE ) SPRINGFIELD TERMINAL RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when it assigned outside
forces to perform Maintenance of Way work (dismantling of yard
tracks) in Rigby Yard, South Portland, Maine, beginning May 4
through May 7, 2004.
2. The Agreement was further violated when the Carrier failed to
provide the General Chairman advance written notice of its plans
to contract out the above-described work as stipulated in Article 3.
3. As a consequence of the violation referred to in Parts (1) and (2)
above, furloughed Foreman Timothy A. Smith, Sr., furloughed
Equipment Operator Paul L. Jackson and furloughed Trackmen
Brian S. Miles and John B. Sanborn, Jr., compensation as set forth
in claims as filed on the property. (Carrier File MW-04-28, et al)
FINDINGS:
The Board, after hearing upon the whole record and all the evidence, finds that the
parties herein are Carrier and Employee within the meaning of the Railway Labor
Act, as amended; this Board has jurisdiction over the dispute involved herein; and,
the parties were given due notice of hearing thereon.
The Organization contends that the Carrier violated the current Rules Agreement
when, without proper notice of contracting out, it had employees of an outside
contractor dismantle tracks and switches in Rigby Yard. It alleges that the work
performed by the contractor forces is specifically reserved to Claimants under the
STIBMWE Agreement. The Organization also claims that certain materials were
marked by the Carrier that were not a part of the sale and that the "removal,
stacking, loading, unloading, etc., of those materials" by the contractor was and is
Maintenance of Way work, and thus constitutes further violation of the STIBMWE
Agreement.
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In this latter respect, the Organization says that the Carrier subsequently used some
of the materials that were left behind, or set aside, including the use of some
materials for the rebuilding of a switch in Rigby Yard, and that such actions
support the conclusion that the contractor was permitted to perform work reserved
to Claimants.
The Carrier submits that it entered into a Purchase and Sale Agreement on April
27, 2004 with Pohl Constructions whereby it agreed to sell what is defined in the
agreement as "Railroad Materials." As a condition of the agreement, the Carrier
says, Pohl agreed to purchase the railroad materials on an "as is - where is"
condition, and, further, that Pohl would be responsible for removing the purchased
materials. The railroad materials covered by the agreement were said by the
Carrier to have been specifically marked in order to help identify them for Pohl.
Under the above circumstances, the Carrier says since it no longer owned the
materials, it did not contract out any "work" coming under the ST/BN1[WE
Agreement.
The Purchase and Sale Agreement defined the sale to include: "The collective
process of cutting, collecting, loading, weighing, removing and disposal of the
Railroad Materials from the Premises."
In study of the record the Board finds it worthy of note that the Carrier made the
following unrefuted statement in its denial of the claim on the property:
Pohl did not "sort," "load," "unload" or "etc." the materials that were
retained by the Carrier. No sorting was necessary since the materials
had been previously marked by the Carrier. The Carrier's materials
were not loaded or unloaded by Pohl, because the materials remained
at the same location. Carrier management further asserts that Pohl
left the area in complete disarray once it had pulled up and removed
its materials. The Carrier's property was not carefully or neatly set
aside, as Pohl was only concerned with taking its scrap and leaving
the area. Pohl had no incentive to perform any "work" for the
Carrier. Moreover, the on-site supervisor attests to the fact that
maintenance of way forces were used to pick up the materials that
were left behind/retained by the Carrier. Local management has
advised that, at present, there is one small pile of tie plates on the
property, which could theoretically be characterized as "stacked," as
opposed to being thrown into a "pile." However, Labor Relations has
been informed that these tie plates are not marked with paint, which
means one of two things. Either (1) these tie plates are not related to
the present dispute, since the materials retained by the Carrier had
been marked with paint, or (2) these tie plates were part of the
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transaction, but rightfully belong to Pohl since they are not marked.
Nevertheless, it is reiterated that the Carrier did not ask, instruct, or
authorize Pohl to "stack" said tie plates.
In the opinion of the Board, it being evident in study of the record that the Carrier
had a unilateral right to enter into an agreement with an independent contractor for
the sale of certain rail and switch track on an "as is - where is" basis, retaining for
its own use certain materials associated with the sale, and nothing of record showing
that the Carrier had contracted or instructed the contractor to stack materials that
were disturbed in connection with the contractor removing its purchased property,
and to be left behind, the Board finds no basis to hold that there was a violation of
the current ST/BMWE Agreement.
AWARD:
Claim denied.
Robert E. Peterson
Chair & Neutral Member
Anthony F. Lomanto Stuart A. Hulburt,
Jr.'
Carrier Member Organization Member
North Billerica, MA
Dated
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