PARTIES TO DISPUTE:
Award No. 14
Case No. 14
Brotherhood of Maintenance of Way Employees
CSX Transportation, Inc. (formerly Louisville and
Nashville Railroad Company)
Claim of the System Committee of the Brotherhood that
1) The Agreement was violated when the
Carrier assigned outside forces and Assistant
Roadmaster T. Long to spread weed killer
along the right of way between Mile Posts
116.7 and 129.6 on the Dresden Branch Line,
Nashville Division on June 16, 1994, instead
of assigning Messrs. D. W. England and R. K.
Allen (System File 14(44) (94) j 12(94-0866)
LNR].
2) The Agreement was further violated when
the Carrier failed to furnish the General
Chairman with advance written notice of its
intent to contract out said work in
accordance with Article IV of the May 17,
1968 National Agreement.
3) As a consequence of the violations
referred to l n Parts (1) and (2) above, Mr.
D. W. England shall be allowed three
(3)
hours' pay at the foreman's straight time
rate and Mr. R. K. Allen shall be allowed
three (3) hours' pay at the Rank 3 rate.
FINDINGS:
This Board, upon the whole record and
finds and holds as follows:
1. That the Carrier and the Employee involved in this
dispute are, respectively, Carrier and Employee within the
meaning of the Railway Labor Act, as amended,; and
2. That the Board has jurisdiction over this dispute.
of the evidence,
OPINION of THE BOARD:
With respect to Claimant England, the submission in the present
dispute includes a document that the Claimant executed on
November 4, 1997. The document, titled "Settlement and Final
Release of All Claims," applies to the present matter. As a
result of the release, the Board lacks jurisdiction to consider
the merits of the present claim with respect to Claimant England.
With respect to Claimant Mr. Allen, this case involves the
spraying of weed killers along the right-of-way by licensed
outside forces. The use of such herbicides occurs in the context
of increased governmental regulation by the Environmental
Protection Agency.
The record indicates that outside forces have performed this
function for many years and use special equipment that trained
and licensed personnel operate. In the absence of any persuasive
evidence to the contrary, the Carrier had the right to arrange to
have outside forces perform such work.
The record omits sufficient evidence to prove that a supervisor
improperly performed the disputed flagging while accompanying the
outside forces on June 16, 1994. The limited and incidental
flagging activity, which occurred under the present
circumstances, did not violate any part of the Agreement. The
supervisor, as a qualified employee, had a right to provide such
limited flagging protection--which lasted for less than one full
day--while he accompanied the outside forces in his supervisory
capacity.
The longstanding practice on the property of using outside forces
for spraying weed killers eliminated any requirement for the
Carrier to provide to the Organization advance written notice of
such limited and incidental action.
Under all of these precise conditions, the organization failed to
meet its burden of proof.
AWARD:
The Claim is dismissed with respect to Claimant England in
accordance with the opinion of the Board. The Claim with respect
to Claimant Allen is denied in accordance with the Opinion of the
Board.
Robert L. Dougla
Chairman and Neutral Member
2
Donald D. artholoma
Employee Me ber
Dated:
'Patricia A. Madden
Carrier Member
3