AWARD NO. 67

Case No. 67












                  CONSOLIDATED RAIL CORPORATION


          STATEMENT OF CLAIM:


          Claim of the System Committee of the Brotherhood that:


          (1) The Agreement was violated when the Carrier assigned outside forces to perform track and bridge dismantling and construction work at Bayonne Yard, Bayonne, New Jersey (System Docket CR-3051). (2) The Agreement was further violated when the Carrier did not give the General Chairman prior written notification of its plan to assign said work to outside forces.


          (3) As a consequence of the violations referred to in Parts (1) and/or (2) above, B&B Mechanics P. Clark; B. Colon, B. Cosby, C. Falcao, M. Fidalgo, R. Frekey, M. J. Gittens, M. D. Gittens, Jr., F. Hemancez, J. Kratz, D. Kurak, R. Matushoneck, R. Roman, P. Rivas, G. Sanchez, G. Sell, J. Sullivan, S. Takas, H. Trumpore, R. Zerfuss, B. J. Parsons and R. Pardo shall each be allowed pay for an equal proportionate share of the straight time and overtime man-hours expended by the outside contractor performing the work referred to in Part (1) above, beginning November 21, 1986 and continuing until the violation is corrected.


          FINDINGS:


          Upon the whole record and all the evidence, and after hearing on December 17, 1990, in the Carrier's Office, Philadel- phia, Pennsylvania, the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the parties and of the subject matter.


FRED BWKWELL DECISION: Claim denied.
 ATTORNEY AT LAIN
 19129 ROAM PAY
 c,Au7NEEMAC.
 MARYLAND 20879
 [301/ 37Y5000
                      SBA NO. 1016 / AWARD NO. 67 - CASE NO. 67


                                  OPINION

          This dispute arises from a claim filed in behalf of MW Bridge and Building Employees, on the basis of allegations that the work jurisdiction and notice provisions o the BMWE Scope Rule were violated by the Carrier's action of improperly contracting wits an outside company to perform track and bridge dismantling and construction work a Bayonne Yard, Bayonne, New Jersey. The Organization asserts that the Carrier'; contention that no Agreement violation occurred because the State of New Jersey had control of the project is not valid.

          The Carrier submits that no Agreement violation occurred because the subjec work was for the sole benefit of the State of New Jersey, and because the State had control of the work from its commencement to its completion.


          The subject work arose from the plan of the State of New Jersey to construe a new highway in 1986 in the vicinity of the Carrier's then existing industrial track and bridges that ran between Bayonne Yard, westward, to the Avenue A industrial track in the vicinity of John F. Kennedy Boulevard. Because the State needed the then existing - the "old" - industrial track between Bayonne Yard and Avenue A industrial track, for the new highway (Route 169), the State agreed to build a "new" industrial track as a substitute foi the old industrial track.

                  The land on which the new track was to be built was not owned by Conrai


ATTORNEY AT LM

 18729 RDMAN MY

 MYLMD 20879
 2
 [3D1) 9n.b000
                      SBA NO. 1016 / AWARD NO. 67 - CASE NO. 67


          when the project commenced, but Conrail expected the land to be deeded to it by th State. The deed of conveyance relating to the new track had not been executed when th record on this dispute was closed. Likewise, the property on which the old track had bee situated had not been deeded by Conrail to the State when the record was closed.

          The abandoned main line of the Central of New Jersey Railroad (CNJ) and th old industrial track had parallel tracks from the Bayonne Yard to the Avenue A industri~ track. The abandoned CNJ main line and the old industrial track shared four (4) elevate bridges that carried trackage over four (4) streets in Bayonne.

          The State commenced removing portions of each of the four bridges the carried the abandoned CNJ main line in July 1986. The new industrial track was dedicate to Conrail's use on February 8, 1988. The demolition of the remaining portions of the bridges carrying the old industrial track commenced on February 15, 1988.

          The State of New Jersey paid the entire cost of the project: the constructioi of the new industrial track and the dismantling of the old industrial track.

          In assessing these facts the Board finds that the Carrier did not control the work performed on either the old or the new industrial tracks and that the sole purpose c the project requiring the work was for the State of New Jersey to acquire the property the the Stated needed for the State's highway construction project, i.e., the old industrial track The State paid the entire cost of the project, including certain incidental track worl performed by Carrier forces in tieing into existing Carrier owned trackage.


FRED BL%%VU
 AnMEY AT LAW The project was for the benefit of the State and was controlled by the State

 18129 ROMAN NAY

                                    3

WMpYLAND 20879
 1M) M-M
            SBA NO. 1016 / AWARD NO. 67 - CASE NO. 67


These considerations concerning the purpose of and the control of the work are no affected by the fact that deeds conveying ownership of the properties had not yet beet execu-ted by the State and Conrail when the record on this dispute was closed. The usE of the old track as a viable railroad operating property ended when the State's contracto began demolition work on the old track on February 15, 1988.


        In these circumstances it cannot be said that the Carrier violated the


Agreement; therefore, based on the record as a whole, the claim will be denied for lack o requisite record support. Third Division Award Nos. 13745 and Award No. 2. PL.B No. 747
                                    i


Fred Blackwell

Chairman / Neutral Member

Special Board of Adjustment No. 1016


April 15, 1994.

 Conrail\1016\67-67.415

FRED BLACKWELL

ArTORNEY AT LAW


19129 ROMAN 1WY

GAITHERSBUfG,

MARYLAND 20879

ill gn-5W

            SBA NO. 1016 / AWARD NO. 67 - CASE NO. 67


        AW

        The Agreement was not violated. Accordingly, the claim is hereby denied.

        BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016


                  Fred Blackwell, Neutral Member `·


    S. V. Powers, Labor Member . H. Burton, Carrier Member


Executed on 1994

 Conraff\1016\67-67.415

 FRED BLACKWELIL
 ATTOREY AT LAW
 19129 ROMAN IWY
 GBURG, 5
 MARYLAND 20879
 (301/ 977-5800