NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19418
Arthur W. Devine, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Louisville and Nashville Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1-a) The Carrier violated the Agreement and Article IV of the National
Agreement of May 17, 1968, when, without prior notification to the General Chairman, it assigned the
Georgia to outside forces (System File 1-5/E-201-5).
(1-b) The Carrier further violated the Agreement when it assigned an
assistant division engineer instead of an assistant foreman to provide protection
for the outside forces and their equipment.
(2-a) Mr. F. E. McFarland be allowed 16 hours' pay at the truck driver's
straight time rate and 6~ hours' pay at the truck driver's time and one-half rate
of pay because of the violation referred to in Part (1-a) above.
(2-b) Mr. B. W. Haney be allowed 16 hours' pay at the assistant foreman's straight time rate and
one-half rate because of the violation referred to in Part (1-b) above.
OPINION OF BOARD: The claim alleges that the Carrier violated Article IV of
the National Agreement of May 17, 1968, by contracting the
spreading of weed killer without prior notification to the General Chairman.
The Carrier contends that work of the kind involved has been contracted
through the years and that the Petitioner has failed to prove an exclusive right
to the work.
The Scope Rule of the applicable agreement reads:
"Subject to the exceptions in Rule 2, the rules contained herein
shall govern the hours of service, working conditions, and rates of
pay for all employes in any and all sub-departments of the Maintenance of Way and Structures Departm
<7ti.
Award Number 19334 Page 2
Docket Number MW-19418
Rule 2(f) set forth the conditions under which work may be contracted.
However, in the handling of the dispute on the property no issue was joined as
to the application of Rule 2(f).
So far as Article IV of the May 17, 1968 Agreement is concerned, it
is well settled that the exclusivity doctrine has no application. See Awards
Nos. 18305, 18306, 18860, 18867, 18773, 18714, 18716, 18968, 19056, 19153,
19154, and 19191. See also recent Award 19158 involving the application of
the Scope Rule of the Agreement here involved and Rule 2(f) thereof.
We will follow the prior awards of the Division heretofore cited in
finding that the Carrier violated Article IV of the National Agreement of May
17, 1968, in failing to notify the General Chairman of its intention to contract
the work. However, as it has not been shown that anyone suffered any monetary
loss by reason of the actual contracting of the work, we will also follow the
prior awards and deny claim for monetary payments as result of the contracting
without prior notice to the General Chairman.
We do find, however, that the Carrier violated the Agreement in asst
ing an Assistant Division Engineer, an employe not covered by the Agreement to ~
work with the contractor in the securing of line-ups, etc.
Parts (1-a), (1-b) and (2-b) of the claim will be sustained; part
(2-a) will be denied.
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 approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated to the extent shown in Opinion.
A W A R D
Part (1-a) of claim sustained; Part (1-b) of claim sustained; Part
(2-a) of claim denied, Part (2-b) of claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
XA ,
Dated at Chicago, Illinois, this 14th day of July 1972.