SPECIAL BOARD OF ADJUSTMENT 1110
Brotherhood of Maintenance of Way Employees
and
Award No. 18
Case No. 18
CSX Transportation, Inc. (formerly the Chesapeake and
Ohio Railway Company)
Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier assigned
outside forces (R. J. Corman) to perform Maintenance of Way
and Structures Department work (mow and clean the right of
way, general maintenance and installation of rail and ties)
on the Cabin Creek Subdivision near Cabin Creek, West
Virginia beginning August 15, 1994 and continuing [System
File C-TC-5883/12 (95-0013) COS].
2. The Agreement was further violated when the Carrier
failed to give the General Chairman advance written
notice of its intent to contract out said work or
discuss the matter in conference in good faith prior to
contracting out said work as required by the October
24, 1957 Letter of Agreement (Appendix "B").
3. As a consequence of the violations referred to in Parts
(1) and/or (2) above, Claimant A. B. Shelton shall be
compensated '· . . . for 10 hours a day for each day at Class
A Operator rate of 14.43, account the aforementioned rules
violation as well as this loss of work opportunity."
FINDINGS:
This Board, upon the whole record and all of the evidence, 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.
The record indicates that outside forces performed scope covered
work. As an affirmative defense, the Carrier asserted that a
lease existed for the applicable property; that the Carrier
therefore lacked control over the property; and that the Carrier
lacked any responsibility to the Organization or the employees
represented by the organization for the activities of the outside
forces. Although the Organization requested a copy of the lease
during the handling of the dispute on the property, the Carrier-for whatever reason--failed to produce a copy of the lease to the
organization in a timely manner. Under these circumstances
Carrier failed to prove its affirmative defense. The
Organization therefore proved that a violation of the scope
clause of the Agreement had occurred and that the Carrier had
failed to provide the requisite advance notice to the
organization.
With respect to the appropriate remedy for the violations and in
the absence of a bona fide affirmative defense, the Carrier shall
compensate the Claimant--who was available and qualified to
perform the disputed work--for the lost work opportunities as set
forth in the claim.
AWARD:
The Claim is sustained in accordance with the Opinion of the
Board. The Carrier shall make the Award effective on or before
30 days following the date of this Award.
Robert L. Dougfas
Chairman and Neutral Member
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naia L.~tsarznoloma.
Employee amber
Patricia A. Madden
Carrier Member
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