Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8730
SECOND DIVISION Docket No.
841.6
2 -LT -USWA-'
81.
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
( United Steelworkers of America
Parties to Dispute:
( Lake Terminal Railroad Company
Dispute: Claim of Employes:
(1) This time claim is instituted on behalf of the following employees: M.
Santiago
#553;
L. Julia
#564;
J. Johnson #111-25; and V. Bellan
#561; who
claim their rights to lay concrete block, install the ceiling and insulation,
and put up paneling at the Maintenance of Way Foremen's Building for ;more
Foremen's offices, were violated when the work was contracted out and begun
on July
19, 1978
and was finished on August
7, 1978.
This is a violation
of (1) a long existing practice and (2) Rule
17
of the current agreement.
(2) As penalty for the violations enumerated above, it is requested the Carrier
compensate the claimants named above eight
(8)
hours pay at their respective
rates of pay for each day that this violation existed, in addition to all
other earnings.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act
as approved June 21,
1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein..
Parties to said dispute waived right of appearance at hearing thereon.
On July
7
and 10,
1978,
carrier let two subcontracts for work to be performed
at the Maintenance of Way Department's Foreman's Building. The subcontract was for
the construction of cement block exterior walls, finishing and panelling interior
walls, roofing, insulation, installation of windows and doors, etc. The electrical
work involved in the construction was performed by carrier's employes. The
organization alleges that by contracting out this work, carrier violated the
schedule agreement. It failed to notify the union that it intended to contract
out this work and the work in question is the organization's work by rule and
cannot be contracted out with the agreement of the union.
Rule
17
reads as follows:
Form 1 Award No. 8780
Page 2 Docket No. 8416
2-LT-USWA-'81
"Contracting Out
Except for minor transactions not of a recurring nature, it
is the intention of the carrier to give the union advance notice
of the contracting out of work of a type currently or customarily
performed by its employes represented by the United Steelworkers
of America, and to meet with the union when requested to do so,
for the purpose of reviewing whether the use of the employes to
perform such work would `b6 equivalent to the use of a contractor."
Carrier contends that it inadvertently failed to notify the union of its
intention to contract out the building work. At any rate, all organization members
were fully employed. Even if the union had been notified and been able to discuss
the decision, it would have made no difference. The work would have been contracted
out in any event.
Rule 17 clearly requires that when carrier intends to contract out work, it
must notify the union and discuss the contracting out if the union requests such a
discussion. Carrier is not obligated to obtain the union's agreement to contract
out, but it must give the union an opportunity to talk about the situation and try
to persuade carrier, if it chooses, that the work should be done by carrier employes.
Failure of carrier to give notification and enter into discussion, if requested, is
a schedule agreement violation and is not condoned by this board.
The issue of carrier's failure to notify the union when it intends to subcontract ,,fir,
has been adjudicated before this Board and Special Board of Adjustment 570 on many
occasions. Where carrier is required to give notification and fails to do so, all
jurisdictions have declared it an agreement violation. The problem then arises as
to what is the proper remedy for such a violation. This Division, as well as the
Third Division, has taken the position that full employment of claimants has generally
mitigated against the payment of such claims as those being requested here. This
Board has no justification for modifying that position in this case.
A W A R D
Claim sustained as to Rule 17. Claim denied as to payment requested for
claimants.
NATIONAL RAIILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By /
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 28th day of October,
1981.