PUBLIC LAW BOARD NO. 7101
CASE NO. 18
(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 (RTI Rail Services) to perform routine Maintenance of
Way and Structures Department work (cleaning right of way)
between Mile Posts 36.0 and 108.0 on the Spokane Subdivision
within the Oregon division beginning on May 17, 2004, and
continuing, instead of Messrs. R. Porter, D. Hoffman, B. Lamb
and C. Anderson (System File C-0452-114/1402909).
(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 said work or make a good-faith
attempt to reach an understanding concerning said contracting as
required by Rule 52(a).
(3) As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants R. Porter, D. Hoffman, B. Lamb and C.
Anderson shall now each be compensated at their respective
applicable rates of pay for all hours for an equal proportionate
share of the total man-hours, straight time and overtime,
expended by the outside forces in the performance of the aforesaid
work beginning May 17, 2004 and continuing.
The Carrier has declined this claim."
Page 2 PLB 7101
Case 18
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.
Claimant R. E. Porter has established and holds seniority on the Northwest
District as a Group 19 Roadway Equipment Operator. Claimant D. A. Hoffman has
established and holds seniority on the Oregon Division as a Group 8 Foreman.
Claimant B. J. Lamb has established and holds seniority on the Oregon Division as
a Group 15 Truck Operator. Claimant C. L. Anderson has established and holds
seniority on the Oregon Division as a Group 18 Extra Gang Laborer. Claimants
were assigned and working their respective positions on the dates involved in this
dispute.
Beginning on May 17, 2004 and continuing, the Carrier allegedly assigned
RTI Rail Services to perform right of way cleaning of scrap, used ties and wood
debris between Mile Posts 36.0 and 108.0 on the Spokane Subdivision of the Oregon
Division. Four employees of the contractor working eleven hours per day used a
truck and trackhoe to load scrap, ties and debris.
This case involves the Carrier's sale of its property to an outside party.
According to the Carrier, it sold the ties on an "as is, where is", basis to a third
party. According to the Carrier, the "as is, where is" Agreement mandates that the
purchaser had the right to contract out the work of loading and transporting its
purchased property, taking it from the Carrier's right-of-way.
The Organization contends that the Agreement was violated when the
Carrier allegedly assigned RTI to perform said Maintenance of Way work. First, it
claims that the Carrier did not provide adequate Notice to the Organization.
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 ties and wood
debris were sold to a third party on an "as is, where is" basis, which historically has
been allowed and all work performed consequent to the sale 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 18
In order for the Carrier to be successful, it must prove the existence of an "as
is, where is" contract. In the instant case, a review of the evidence shows that no
such contract has been presented, in spite of a request from the Organization.
Absent a contract to substantiate the Carrier's contention, the Claim must be
sustained. As indicated in Third Division Award 37470 issued by Referee Goldstein:
... As countless Awards of the Third Division have held, we also hold
that when the `as is, where is' affirmative defense is raised by the
Carrier, it is incumbent upon the Carrier to furnish persuasive
evidence in support of that defense while the claim is still in onproperty handling. See Third Division Awards 30661, 31521, 32320,
32858, and 36093. From the record before us, the Carrier did not
tender any evidence of probative value. Therefore, it unsuccessfully
carried its burden of proof in this critical defense, we hold.
In the instant case, we have reviewed the record and find that the "as is,
where is" contract of sale is not present. Thus, because the Carrier has not proven
this significant aspect of its affirmative defense, the Claim must be sustained.
As to the remedy
in
this case, we find that Claimants should be made whole.
The instant case involved a situation in which the Carrier was to provide the
Organization with a copy of the contract to allow the Organization to properly
determine its position regarding the validity of the "as is, where is" sale. It did not
do so. This Board adopts Referee Benn's reasoning in a notice case in Third
Division Award 32862:
... The Carrier's course of action now is a straight forward onesimply give notice where the work arguably falls "within the scope of
the applicable schedule agreement." If it does so, the Carrier will not
be faced with the kind of remedy imposed in this case because it failed
to give notice.
This claim shall be sustained in its entirety. We shall remand this
case to the parties to determine the number of hours worked by the
contractor's forces on the dates set forth in the claim. Claimants
shall be compensated accordingly.
The Claim is sustained.
Page 4 PLB 7101
Case 18
AWARD
Claim sustained.
Steven
"9itally signed by Steven Blerig
Bi
erig
Steven M. Bierig
Chairperson and Neutral Member
I
Dominic Ring Roy binson
CCi M m 111.1
arrier Member Org nization Member
G
.'S"
0`
Dated at Chicago, Illinois this 5te day of June 2009.