Form 1 NATIONAL RAILROAD ADJUS'.CMENT BOARD Award No. 8845
SECOND DIVISION Docket No. 8777
2-NRPC-EW-.'82
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
(. International Brotherhood of Electrical Workers
Parties to Dispute:
National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That under the current Agreement, the National Railroad Passenger
Corporation (Amtrak) improperly contracted out the work of rebuilding
and repairing of 27 Metro7_iner Cars to General Electric Company.
2. That accordingly the Naticn al Railroad Passenger Corporation (Amtrak)
be ordered to desist from contracting out this work and compensate the
employes listed below, in equal pay, the amount equivalent to eight (8)
hours pay per day for each day that work on the 27 cars is being
performed by the General Electric Company.
F and in8s
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 Jtnu 21, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said. dispute were given due notice of hearing thereon.
Late in 1977 the Carrier began to subcontract the rebuilding of Metrol.iner
cars to the General Electric Company. The first of the cars were sent. to General
Electric on November 25, 1977. On February 28, 1978, the Local chairman filed a
claim protesting the subcontracting of ten Metroliners without identifying which
Metroliners. The Carriid~r declined~the-alnim for awaristy of reasons in a
timely fashion. The next development in this issue was on December 28, 1978,
when the Local Chairman again filed a claim protesting the subcontracting of
Metroliners. This claim referred to the subcontracting of 27 Metroliners and listed
them by number.
The Carrier argues that the claim should be dismissed in its entirety because
the December 28, 1978 claim was not filed "within
60
days from the date of the
occurrence on which the grievance is based". The Organization responds that the
claim can only be filed within
60
days of when they discover or have knowledge
of the alleged violation. After carefully considering the arguments made by
both sides, the only thing that can be concluded with certainty is that there
were four Metroliners subcontracted within 60 days prior to the filing of the
December 28, 1978, claim, namely cars 825, ·327,
828
and 865.In view thereof
Form 1 Award No. 8845
Page 2 Docket No.
8777
2-NRPC-Ew-'82
the Board will consider the merits of the subcontracting issue as it relates to
the four Metroliners mentioned above.
In considering the merits, the Organization made two arguments in a hearing
before the Board supporting their position, that the Board from the outset is
precluded from considering. The Organization argued in the hearing that the
subcontracting was precluded by virtue of a January 13,
1976
letter of understanding
and Appendix C of an implementing agreement also dated January
13, 1976.
The
Carrier, at the hearing, objected to these a:cguments on.the basis that they were
not made on the property. In reviewing the record, the Board cannot find that
these agreements were cited as support for the claim during its handling on the
property or in the Organisation's written supmission before the Board. It is
well established in the precedent of this Board that we cannot consider contentions
not handled on the property. In finding that we cannot consider the impact of
the January
13, 1976
agreements on the right of Amtrak to subcontract, we therefore
make no judgment on their relevance to this issue.
On the property and in its written submi.ssim , the Organization contends
that the Carrier is prohibited from subcontracting by Rule 1 of the September 1,
1875
Agreement and by a statutory limitation. This same issue and arguments were
considered recently in Secrn d Division Award
8735
(Referee Twomey). The
Organization argued at the hearing that Awar·1
873j
is distinguished from the
instant case because it didn't consider the January
13, 1976
agreements. However,
as we stated above, the January
13, 19'(6
agroements have not been properly invoked
into this dispute and as a result Award
8735
is not distinguished. Based on the
principle of stare decisis we hold the principle enunciated in Award
8735
to be
applicable here. In Award
8735,
it was held that Rule No. 1 does not act as a
prohibition to the Carrier's right to subcontract. Further, it was stated:
"We find that Amtrak, as it has acted over the years of its
existence, does have the right to subcontract. Amtrak
recngn:.ze.. she statutory limitation prohibiting it from
contracting out where such will result in the lay-off of an
employee or employees from the bargaining unit. This Board
has authority to review Amtrak's subcontracting decisions
and Amtrak is put on notice that the Board will not allow
the Agreement of the parties to become a relatively useless
document by means of the contracting-out device."
In applying the facts of this case against this :standard we cannot find that
any violation has occurred. There is no evidence the subcontracting resulted in
a layoff of any bargaining unit employee.
h1
view thereof, the claim is denied.
A WAR D
Claim denied.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No, gg45
Docket No.
777
2-NRPC-EW-'82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
BY _
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 6th day of January, 1982.