NATIONAL RAILROAD ADJUSTHM BOARD
THIRD DIVISION Docket Number
MW-19473
Robert M. 0'Brien, Referee
Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE.
Chicago and North Western
Railway Company
STATEN= (F CLAtrI: Claim of the System Committee of the Brotherhooa that:
(1) use Carrier violated the Agreement and Article IV of the National
Agreement ad !fty 17,
1968
when, without prior notice to the General Chairman, it
assigned track maintenance work at and/or in the vicinity of Mdrshalltown, Ams,
Booms and Lisbon, Iowa to outside forces beginning on October
6, 1969
(System
File
81-3-169).
(2)
The track foreman, assistant track foremen and laborers on the
Iowa Division who were assigned to Maintenance Gangs
923, 929
and
930
and to
Section Gangs
222
end
233
each be allowed pay* at his respective rate of pay
for an equal proportionate share of the total number of man hours consumed by
outside forces in performing the work referred to in Pert (1) hereof.
*(The claim contemplates that all service performed by said
outside forces during the claimants' straight-time hours
vin
be allocated to the claimants an the basis of the claimnats'
straight-time rates and that all service performed by said
outside forces during the claimants' overtime hours wilt be
allocated to the claimants on the basis of the claimants'
overtime rates.)
(3)
The Carrier shall also pay the c,Adm.nua sir percent
(6%)
interest
par aamms an the monetary allowances accruing from the initial claim date until
paid.
OP33ION OT BOARD: The Organisation contends that Carrier used manpower fur
- niehed by Manpower, Ins., an butaide concern, to perform
routine track mintenance work, which work, it states, belongs to Track Snb
departmat forces, and failed to notify the General Chairmen in writing of its
plans to contract out the work as required by Article
iv
of the may 17,
1968
National Agreement.
It is undisputed that Manpower, Inc. recruited, selected and hired
the men. They were paid by Manpower while they worked with regular track forces
under the supervision of the track foreman.
Award Number 19399 page 2
Docket Number l4i-19473
Carrier
defends on
the theory that it did now contract out the work
in question and, in any event, since claimants did not sustain any pecuniary
loss damages should not be allowed.
This Board adopts the reasoning in Award
19305
and we hold that by
hiring Manpower, Inc. to perform the work herein, Carrier did contract out work
so as to come within the provisions of the May 17,
1968
National Agreement.
And it makes no difference that the track maintenance work raw usually performed
by extra gang laborers. The work is work embraced within the scope of Petitioner's
applicable Agreement even though extra gang laborers were used to perform it in
the past. Therefore, it was incumbent on Carrier to caolily with the provisions
of Artlels IV before contracting out the scope covered work to outside forces.
It is sncantroverted that Carrier did not notify the General Chairman of its
plans to contract out. And having failed to do so Carrier violated Article IV
of the his' 17,
1968
National Agreement.
Die do not find that will adhere waived the defense of full employment an
Claimant
thug no s o pecuniary loss we
frill
deep) Part 2 of awards the claim. See
Awards
18305, 18306, 7.8687, 19305
and ethers.
FISDING8: The Third Division of the Adjustment Board, upon the whole record and
alt 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 Employee within the meaning of the Railway Labor Act,
as approved Jane 21,
1934;
That this Division of the Adjustment Board has jurisdiction over the
dispusa involved herein; and
That the Agreement was violated in accordance with the Opinion.
A N A R D
Part (1) of the claim sustained;
Part (2) denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order cf Third Division
ATTEST:
oe49'
Executive Secretary
Dated at Chicago, T11inoiss this 15th day of
September
1972.
OPINION OF CARRIER MEMBERS - AWARD 19399, DOCKET NW-19473
(Referee O'Brien)
We concur in the portion of the award which denies part 2 of the
claim, but dissent to the portion which sustains part 1. See Opinion
of Carrier Members, Award 19305.
a
a
L~O h
V