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 (Mark Blong) to perform Maintenance of Way and
Structures Department work (align, ballast, surface, align and
related track work) off the side track at Mile Post 181.2 near
Hurley, Iowa on the Mason City Subdivision beginning on March
22, 2003 and continuing through March 27, 2003 instead of
Messrs. L. Hughes, R. Sanders, R. Pond and J. Kepler (System
File 2RM-9434T/1363382 CNW).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with an advance written notice of
its intent to contract out the above-referenced work or make a
good-faith attempt to reach an understanding concerning such
contracting as required by Rule 1(b).
(3) As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants L. Hughes, R. Sanders, R. Pond and J.
Kepler shall now each be compensated for thirty-two (32) hours at
their respective straight time rates of pay and sixteen (16) hours at
their respective time and one-half rates of pay.
The Carrier has declined this claim."
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
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Case No. 3
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
Claimant L. L. Hughes has established and holds seniority as a Foreman.
Claimant R. D. Sanders has established and holds seniority as an Assistant
Foreman. Claimant R. E. Pond has established and holds seniority as a Truck
Driver Common. Claimant J. G. Kepler has established and holds seniority as a
Trackman. On the relevant dates, Claimants were regularly assigned to their
respective positions on Seniority District T-2.
On March 22, 2003 through March 27, 2003, Mark Blong allegedly
performed routine Maintenance of Way track work on the side track at Mile Post
181.2 on the Mason City Subdivision, near Hurley, Iowa. The Carrier contends that
this section of track was leased to Interstate Power and Light. Employees of Mark
Blong, consisting of 1 foreman, 2 skid loader operators, 2 truck drivers and 1
laborer, used machinery to unload ballast, surface, align and dress off the track at
Mile Post 181.2. According to the Organization, each of Mark Blong's 6 employees
worked a total of 48 hours performing the relevant work.
The Organization contends that the Agreement was violated when the
Carrier assigned Mark Blong the work of aligning ballast, surfacing, aligning and
other related track work. The Organization claims that it was improper for the
Carrier to contract out the above-mentioned work, which is work that is properly
reserved to the Organization.
According to the Organization, the Carrier had customarily assigned work of
this nature to the Carrier's Maintenance of Way Employees. The Organization
further claims that the work in question is consistent with the Scope Rule.
According to the Organization, the Carrier's Maintenance of Way Employees were
fully qualified and capable of performing the designated work. The work
performed by Mark Blong is within the jurisdiction of the Organization and
therefore Claimants should have performed said work. The Organization argues
that because Claimants were denied the opportunity to perform the relevant work,
Claimants should be compensated for the lost work opportunities.
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier contends that because the track in
question had been leased to Interstate Power and Light, the relevant work was
within the sole control of Interstate. Interstate had the right to contract out said
work to Mark Blong. Specifically, the language of the lease agreement specifies:
The Industry, at its sole expense, shall maintain and repair the track
structure consisting of the rail, ties, ballast and other Track material
including any paving or planking work that may be needed.
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Case No. 3
Further, the Carrier contends that because the work was within the control
of Interstate, the Carrier had no obligation to issue to the Organization a Notice of
its intent to contract out the work. The Carrier also argues that there is a dispute in
facts that cannot be resolved by this Referee.
After a complete and thorough review of the evidence in this matter, we find
that the work in question was subject to a lease by Interstate. As such, the work
does not belong to the Organization. When a legitimate lease dictates that the
matter in question is not within the jurisdiction of the Carrier, it is not
inappropriate for the lessee to contract out work that would otherwise belong to the
Organization had the Carrier been in control of the work. Referee Marx dealt with
a similar issue in Third Division Award No. 29439:
This Claim concerns work performed on terminal elevator tracks in
the East Kansas City Yard by other than Maintenance of Way
employees. The record demonstrates that work on these tracks is the
responsibility of the lessee ... . Rules as to the reservation of work to
Maintenance of Way employees are clearly not applicable where the
Carrier has no control over the work. Since the Organization cannot
defeat this basic principle in this instance, there is no basis for the
In addition, because the property in question was leased to a third party, there was
no need for a Notice to the Organization.
Based on the evidence in this matter as well as the above-cited precedent, we
cannot find that the relevant work should have been assigned to the Organization.
The work in question was within the control and authority of the lessee. Thus,
having determined that the work was not within the scope of the Organization, we
find that the Organization has not met its burden of proof and the Claim is
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Case No. 3
AWARD
Claim denied.
" Steven M. Merit!
C irperson and Neutral Member
'I
Dominic Ring Ry R inson
Carrier Member Organization Member
Dated at Chicago, Illinois this
2,
day of / ~iZ7 2009.