PUBLIC LAW BOARD NO. 7101
(Brotherhood of Maintenance of Way Employes
PARTIES TO THE DISPUTE:
(and
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The Agreement was violated when the Carrier assigned outside
forces (McGuire & Hester Construction Company) to perform
Maintenance of Way work (remove switch and ballast for new
switch to be installed, remove ballast and material from adjacent
crossings and remove road crossing panels) at Mile Post 38.0 on
the Mococo Line in Martinez, California on June 22 and 23, 2001
instead of the employes assigned to System Gangs 8536 and 8539
(Carrier's file 1286298).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with proper advance written notice
of its intention to contract out work referenced in Part (1) above
or make a good-faith effort to reduce the incidence of
subcontracting and increase the use of Maintenance of Way forces
in accordance with Article IV of the May 17, 1968 National
Agreement and the December 11, 1981 Letter of Understanding.
(3) As a consequence of the violations referred to in Parts (1) and/or
(2) above, the Claimants assigned to Gangs 8536 and 8539 on June
22 and 23, 2001 shall now ` ... each be paid twenty (20) hours of
overtime at their respective rates of pay for the hours worked by
the McGuire & Hester Construction Company on those same
dates. Payment shall be in addition to any compensation they may
have already received.
The Carrier has declined this claim."
Page 2 PLB 7101
Case I
FINDINGS:
The Board, upon consideration of the entire record and all of the evidence,
finds that the parties are Carrier and Employee within the meaning of the Railway
Labor Act, as amended; that this Board is duly constituted by Agreement; this
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
All Claimants have established and hold seniority on their respective classes
in the Maintenance of Way Department. On the pertinent dates, Claimants were
regularly assigned to positions on Gangs 8356 and 8539 working compressed 4-day
work weeks, scheduled from 6:00 a.m. until 4:00 p.m. Monday through Thursday,
with Friday, Saturday and Sunday designated as rest days.
This case involves the Carrier's sale of its property to an outside party.
Specifically, the Carrier's employees cut a retired switch from the rail, which was
not being retired, at Mile Post 38.0 at Martinez, California. An outside contractor,
McGuire & Hester, spent approximately 20 hours removing the switch and ballast
from the location. The switch had been sold to McGuire and Hester on an "as is,
where is" basis. According to the Carrier, according to the "as is, where is"
Agreement, the purchaser loaded and transported its purchased property, taking it
from the Carrier's right-of-way, to its own property. The switch and ballast were
removed by the Contractor's employees on .June 22 and 23, 2001 and consumed
approximately 20 hours of time.
The Organization contends that the Agreement was violated when the
Carrier assigned outside forces (McGuire & Hester Construction Company) to
perform Maintenance of Way work, specifically the removal of a switch and ballast
to allow for installation of a new switch, the removal of ballast and material from an
adjacent crossing and the removal of road crossing panels. First, it claims that the
Carrier did not provide adequate Notice to the Organization as is required. Second,
the Organization claims that it was improper for the Carrier to contract out the
above-mentioned work, which is work properly reserved to the Organization. The
Organization argues that because Claimants were denied the right to perform the
relevant work, Claimants should be compensated for the lost work opportunity.
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier contends that the retired switch was
sold "as is, where is", which historically has been allowed and consequent work is
not the province of the Organization. Because the work was performed pursuant to
said sale, Notice to the Organization was not required.
Page 3 PLB 7101
Case 1
After a review of the record, we find that the instant matter qualifies as an
"as is, where is" sale and therefore, is outside the purview of the Agreement. We
note that "as is, where is" is defined as follows:
It is well settled that a genuine sale of Carrier property on an "as is,
where is" basis does not constitute an impermissible contracting
of
reserved work . ... Because such sales do not involve work performed
for the Carrier, the notice requirements pertaining to contracting
of
reserved work are not applicable. Third Division Award No. 37104
(Referee Wallin, 7/21/04)
In the instant case, we have reviewed the record and find that the instant sale
of
the retired switch by the Carrier to an outside party constitutes an "as is, where
is" sale. Thus, because the retired switch and ballast became the purchaser's
property, the removal does not fall under the purview
of
contracting. This was a
bona fide sale and therefore, the Carrier was not required to provide Notice to the
Organization. Thus, the Organization's Claim, including the issues of Notice and
work assignment, is denied.
Based on the evidence in this matter as well as the above-cited precedent, we
cannot find that the removal of the retired switch and ballast by McGuire & Hester
Construction Company was improper. The Organization has been unable to meet
its burden of proof. The Claim is therefore denied.
The Claim is denied.
Page =t
PLB 7101
Case 1
AWARD
Claim denied.
Steve erig
' euairpers~h od tral Member
011"4 -4
Dominic Ring
Carrier Memb
Roy 2obinson
Or anization Member
s2
Dated at Chicago, Illinois this ~ ~~ day ofd 2009.