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 (Railworks) to perform Maintenance of Way and
Structures Department work (unload ballast, surface, align and
dress off the track) from the mainline switch and going into side
track at Mile Post 162.1 on the Mason City Subdivision beginning
on September 11, 2003 instead of Messrs. A. Winship, C.
Sorensen, S. Seible and D. Haugen (System File 2RM9478T/1378998 CMW).
(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
(Z) above, Claimants A. Winship, C. Sorensen, S. Seible and D.
Haugen shall now each be compensated for eight (8) hours at their
respective straight time 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. 7
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
Claimant A. W. Winship has established and holds seniority as a foreman.
Claimant C. J. Sorensen has established and holds seniority as a Class A Machine
Operator. Claimants S. L. Seible and D. H. Haugen have established and hold
seniority as Class B Machine Operators. On the dates pertinent hereto, they were
each regularly assigned to their respective positions on Surfacing Gang 2901 on
Seniority District D-2.
On Thursday, September 11, 2003, the Carrier allegedly assigned outside
forces (Railworks) to perform alleged Maintenance of Way track work on a
mainline switch located at mile Post 162.1 on the Mason City Subdivision near
Hampton, Iowa. According to the Organization, 4 employees of the contractor
consisting of 1 foreman, 1 tamper operator, l ballast regulator and 1 truck driver
unloaded ballast, surfaced, aligned and dressed off the track at Mile Post 162.1. The
contractor's employees each worked eight hours to accomplish the track surfacing
work.
The Organization contends that the Agreement was violated when the
Carrier assigned Roadworks the work of unloading ballast, surfacing, aligning and
dressing off the track from the mainline switch and going into side track at Mile
Post 162.1 on the Mason City Subdivision beginning on September 11, 2003. The
Organization claims that it was improper for the Carrier to contract out the abovementioned work, which is work that is properly reserved to the Organization. In
addition, the Organization claims that it was never properly notified of the work.
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 done by
Railworks 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 subject to an Industry Track Agreement with the Franklin
County Development Association, the relevant work was within the sole control of
the Industry which had the right to contract out said work to Railworks.
Specifically, the language of the Industry Track Agreement specifies:
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Case No. 7
Article 8. Ownership of the Track.
A. The Railroad shall own the portion of the Track from the point of
switch to the 13-foot clearance point
B. The Industry shall own the portion of the Track from the 13-foot
clearance point to the end of the Track
Article 10. Maintenance of Right-of-way and Track Appurtenances.
A. The Railroad, at its expense, shall maintain the right-of-way and
track appurtenances for the portion of Railroad-owned Track.
B. The Industry, at its expense, shall perform the following
maintenance of the right-of-way and track appurtenances for the
portion of Industry-owned Track:
2. Maintain all appurtenances to the Track
Further, the Carrier contends that because the work was within the control
of Franklin County, 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. Finally, it argues that the
Claim is procedurally defective.
After a complete and thorough review of the evidence in this matter, we find
that the work in question was subject to the Industry Track Agreement with
Franklin County. As such, the work does not belong to the Organization. When a
legitimate agreement dictates that the matter in question is not within the
jurisdiction of the Carrier, it is not inappropriate for the Industry 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
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Case No. 7
defeat this basic principle in this instance, there is no basis for the
Claim.
In addition, because the property in question was subject to an Industry Track
Agreement, 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 Franklin County.
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 therefore denied.
The Claim is denied.
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Case No. 7
AWARD
Claim denied.
Steven
Di91laffyslgnedby5tevenBlerig
Bier
ig
Steven M. Bierig
Chairperson and Neutral Member
l
d)
Carrier Member Organ' ation Member
Dated at Chicago, Illinois this 6t6 day of May 2009.