H. G. Harm






(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad
 Signalmen on the former New York Cent--al Railroad Company (Lines West of Buffalo) that:

 (a) Carrier violated the current Signalmen's Agreements, as amended, when it permitted the Railroad Accessories Corporation to install highway crossing protection at Mel
(b) Carrier should now be required to pay, as a result of this violation, additional compensatio










OPINION OF BOARD: The Organization learned from Carrier in November of 1967
 that a substantial amount of signal work was to be performed in the Northern Region in relation to crossing protection projects and that Carrier was considering firms.

 The Organization informed Carrier by a copy of a letter dated November 22, 1967, that it was against contracting any signal work to out side firms, that it was not impressed with Carrier's argument that it could not employe sufficient personnel, that in various parts of the country signal employees were being furloughed and that ther to recruit signal personnel.

 1
                    Docket Number SG-19194


Again on March 6, 1969, B. H; Sttruerwald, Vice-President of the Organization advised Carrier that the Brotherhood was aware that Carrier was talking about contracting out highway crossing protection in Michigan and that the "Organization has been continuously harassed by the Penn Central Management in that they constantly tell us that they want to, or are going to, contract out signal work that comes within the Scope of our respective agreements."

 A portage, Michigan crossing protection project was ordered by the State-_of Michigan Public Service Commission on July 18, 1968 and. the order. was subeaquently amended,on July,.31, 1969 to make changes in. the specification requirements.

 The Orde;.of July,8, 1968 called for Carrier to have installed and operative modern automatic, flashing-light signals in conjunction with the opening -to the Public of the crossing. ,

 The dispute now before the Board stems from the fact that Carrier contracted-out to the, Railroad Ac dates of August 19, 1969 through August 25, 10,69 and it is the position of the Organization that,, Carrier violated the Signalmen's Agreement when it contracted out this work.

 There is no question about,the fart that the Scope, of the Signalmen's Agreement specifically includes the work of installing highway crossing protective devises and appur
Moreover, the general rule is that a Ca:rier may not contract with others for the performance of work within the Scope rule of an agreement and there are few exceptions to this rule.

 On August 19,..20, 21 and 22, 1969 when employes of the Railroad AccessQries Corporation were,instal the Claimants worked their regular 10 hour work day installing certain bells for the,Genera~ Food Company at Battle Creek, Michi6an.

 Claimants were on their rest days Auguqt 23, 24 and 25, 1969 when employes of the aforesaid outside at Pottage.

 The burden,of,,pro(,f in this case is ou ti.e Carrier to demonstrate by the presentation of iact.; in evidence that its dk eruiinatioxL to zontract opt work can be justified in the light of all the circariscauces.
                    Award Number 19268 Page 3

                    Docket Number SG-19194


Carrier does not dispute that the work contracted out was of the type that the Carrier's signal department employes generally performed but it asserts that it had been unable to hire and retain a sufficient work force of construction and repair employ Carrier also contends that time was of the essence with the Portage project because the work of inst coordinated with the work of the State of Michigan Highway Department extending Melody Avenue across the Carrier's tracks so that Carrier's work and the highway construction work would both be completed about the same time.

 The Board would point out that Carrier is under a duty to have a sufficient number of signalmen than a year that a crossing protection installation would be necessary at Portage.

 In addition, Carrier failed to demonstrate that it had made a diligent effort to meet its responsibilities of maintaining a sufficient force of signal employes.

 This Board has held before, and it is basic in order to maintain the Scope of any collective agreement, that work which b(longs to those under an agreement. cannot be given away.to others not covered by the agreement except under circumstances that.are so unusual as to fall within recognized exceptions to the general rule.

 Even if Carrier had made a reasonable effort to maintain a sufficient force of signalmen, it would be obligated to show that the work which had been contracted out could not have been performed by the Claimants on rest days, by way of overtime, or by rearrangement of their work schedule. The Board finds that Carrier has not met its burden of proving that it could not have worked existing signal employes on weekends or extra hours during the week to perform the work.

 The six Claimants in this case are requesting payment of a total of 492 hours and Carrier contends that any consideration by the Board of monetary payment to the Claimants employes.

 We are persuaded that the outside contractor's employes worked 170.5 hours during the period August 19-August 22 when Claimants were on duty and under pay. With respect to these hours, compensation is allowed at the regular rate, such compensation to be divided among the Claimants on a pro rata basis. As to the 100.5 hours worked by the contractor's employes on August 23, 24 and 25, it would appear that Claimants have been deprived of overtime work for which they should receive pay at the overtime rate. Such pay is allowed and is to be divided among the Claimants on a pro rata basis.
                  Award Number 19268 Page 4

                  Docket Number SG-19194


        FINDINGS: The Third Division of the Adjustment Board, .upon the whole record and all the evidence,. finds and holds:


        That the parties waived oral hearing;


That the .Carrier .and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act-, as epproved June.21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                      A W A R D


The Claim is sustained to the extent of 170.5 hours of compensation at the regular rate and 100.5 hours of compensation at the overtime rate, to be divided among the Claimants on a pro rata basis.

              - NATIONAL W.ILROAD ADJUSTMENT BOARD

                                By Order of Third Division


        ATTEST: Executive Secretary


Dated at .Chicago, Illinois, this 9th day of June 1972